Indian Housing Program: Proposed Amendments

Federal RegisterAug 1, 1994

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Assistant Secretary for Public and Indian Housing

24 CFR Parts 905 and 950

[Docket No. R-94-1742; FR-3646-P-01]

RIN 2577-AB43

Indian Housing Program: Proposed Amendments

AGENCY: Office of the Assistant Secretary for Public and Indian

Housing, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would add a new part 950 to HUD's

regulations. New part 950 would contain the Indian Housing Consolidated

regulations that are currently set forth in 24 CFR part 905. In

addition to moving the Indian Housing Consolidated regulations from

part 905 to part 950, the proposed rule would make a number of

amendments to the Indian Housing Consolidated regulations to simplify

program processes, reduce the number of regulatory requirements, and

provide more flexibility to local Tribal and Indian housing authority

officials in the administration of the Indian Housing program.

DATES: Comments due date: September 30, 1994.

ADDRESSES: Interested persons are invited to submit comments regarding

this proposed rule to the Rules Docket Clerk, Office of the General

Counsel, Room 10276, Department of Housing and Urban Development, 451

Seventh Street, S.W., Washington, D.C. 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.

to 5:30 p.m. weekdays at the above address.

FOR FURTHER INFORMATION CONTACT: Dominic Nessi, Director, Office of

Native American Programs, Public and Indian Housing, Room 4140,

Department of Housing and Urban Development, 451 Seventh Street SW,

Washington, DC 20410, telephone (202) 708-1015, or (202) 708-0850

(these are not toll-free numbers). Hearing- or speech-impaired persons

may use the TDD number by contacting the Federal Information Relay

Service on 1-800-877-TDDY (1-800-877-8339) (a toll-free number) or 202-

708-9300 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Paperwork Burden

This proposed rule does not add to the information collection

requirements currently contained in 24 CFR part 905, and that already

have been approved and assigned OMB control numbers under the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501-3520). These numbers are shown

under the applicable sections.

II. Background

Title II of the United States Housing Act of 1937 (42 U.S.C.

1437aa) (``the Act''), as amended provides for the establishment of the

Indian Housing program. The Indian Housing program includes the Rental

program and the Mutual Help and Turnkey III Homeownership Opportunity

Programs. A number of regulatory revisions have been made to the Indian

Housing program in the past four years designed to provide IHAs with

more administrative flexibility. Most recently, a final rule for

``Indian Housing: Revised Consolidated Program Regulations'' was

published on June 24, 1992 (56 FR 28250) and became effective on

October 3, 1992. This proposed rule published today continues that

trend.

The move from part 905 to part 950 will allow HUD's Office of

Native American Programs to consolidate all Native American program

regulations in consecutive CFR parts. HUD's Community Development Block

Grant regulations that are applicable to Indian tribes and currently

codified in 24 CFR part 571 will eventually be moved to 24 CFR part

951.

III. Program Streamlining

A. Administrative Actions and Pre-Publication Comments

The primary goal in undertaking these revisions to the Indian

Housing Program regulations is to provide greater discretion and

responsibility to IHAs in carrying out their housing programs, thereby

returning them to local control. Since September 1993, the six Native

American Program Field Offices have been conducting an extensive

consultation with IHAs and Tribal officials. A significant number of

comments were submitted which constitute the basis for the revisions

contained in this proposed rule.

A consultation session to discuss these changes and to provide for

additional input was held in Washington, DC, with the National American

Indian Housing Council, eight regional IHA associations, as well as a

number of representatives from other IHAs. Additional verbal comments

were received from the Native American housing community at that time.

Each regional Indian housing association received a full set of the

comments submitted by other IHAs. Interested parties should contact

their respective regional associations for a copy of these comments.

Consistent with the principles of Executive Order 12866, HUD has

reviewed the existing Indian Housing regulations, and has proposed

modifications that are designed to make these regulations more

effective, consistent, understandable and sensible.

B. Proposed Amendments

The following describes the amendments proposed to be made to the

Indian Housing regulations. Unless otherwise indicated, the references

to regulatory sections and subparts are to those in the existing

regulations in 24 CFR part 905. Additionally, unless otherwise

indicated, the section numbers in new part 950 will remain the same as

currently set forth in part 905 (e.g., Sec. 905.105 will be renumbered

Sec. 950.150).

SUBPART A--GENERAL

905.105 Types of low income housing projects. The types of low

income housing projects contained in this section has been removed in

an effort to streamline the regulations. The definitions will be

included in the Indian Housing Management Handbook.

905.115 Applicability of civil rights. The civil rights

requirements contained in this section would be amended to include a

reference to title II of the Americans with Disabilities Act (42 U.S.C.

12131).

905.126 Establishment of IHAs by Tribal ordinance. The model

Tribal Ordinance contained in this section have been removed and will

be placed in a handbook for reference. The revised language will state,

``The form of Tribal ordinance shall be determined by the Tribe and

reviewed by the ONAP Administrator. The IHA must also demonstrate that

it has the legal capacity to develop, own and operate a public housing

project under the Act. A sample format will be provided by HUD.''

905.135 Administrative capability. Verbal, as well as written

comments, recommended that the system could be simplified to benefit

both HUD and the IHAs. No specific written comments were given.

Comments received during the Washington, D.C. consultation were mixed

as to the need for change. Based on the discussions during the meeting,

slight revisions have been made to the language in new Sec. 950.135(a)

which could provide flexibility in the future regarding determinations

of administrative capability. The appeal process contained in this

section also has been revised based on HUD's recent reorganization.

905.140 Certification of housing managers. The certification of

housing managers as a Federal requirement has been removed. HUD

encourages the Indian housing community to continue the effort to

professionalize the industry.

Subpart B--Procurement

General

In the current regulation, subparts B and C of part 905 contain

numerous references to approval by HUD for ``high risk'' IHAs. This

proposed rule provides for the assumption that procurement and

development processing will be completed by IHAs that are not

designated ``high risk''. Procedures addressing processing for ``high

risk'' IHAs are contained in Sec. 905.210. This modification has

resulted in significant editing of subparts B and C but has no other

impact on program requirements. Additionally, both subparts B and C

have been reorganized to more closely follow processing steps.

905.160 Procurement standards. This section has been reworded to

clarify that an IHA Board of Commissioners must assure that program

requirements have been satisfied before execution of contracts.

Previous wording required the Board to certify to compliance before a

contract is executed. The proposed language allows compliance with this

requirement if the IHA Board of Commissioners develops procurement

policies in accordance with this subpart and 24 CFR part 85 and reviews

compliance with these policies on a regular basis.

The requirement for submission of a bidding package or a

certification of compliance prior to the solicitation of bids/proposals

is proposed to be removed. Such certification is to be submitted after

award of contract (see new Sec. 950.260).

905.165 Indian preference requirements [Renumbered 950.175]. The

Indian Preference (IP) part has been completely re-written and

simplified. The re-written section closely follows the IP requirements

included in the Indian CDBG regulations in 24 CFR part 571. It is

anticipated that standardization of IP requirements between the Indian

Housing, CDBG and HOME programs will provide improved flexibility to

IHAs and tribes and will be simpler to understand and comply with for

both grantees and contractors/suppliers.

The proposed rule would remove HUD's involvement in the Indian

Preference complaint process. Complaint resolution, including appeals

and administrative hearings, is proposed to be contained at the IHA

level. HUD will continue to monitor IHA compliance with Indian

Preference requirements during periodic performance monitoring reviews.

This proposal is made to expedite the complaint process and to vest

full authority for compliance with Indian Preference with local

officials.

905.175 Methods of procurement [Renumbered 950.165]. The ``X''

factor method has been removed and will be addressed in the program

handbook. The section ``Methods of procurement'' was a continuation of

the IP requirements of the program. With the simplification of IP (see

new Sec. 950.160) this part has been modified to recite the provisions

of 24 CFR 85.36(d).

905.180 Training and employment requirements [Renumbered 950.175].

This section would be relocated to the Indian Preference section (noted

earlier in this preamble) and simplified to enable IHAs to develop

programs which can more adequately reflect local conditions and needs.

Subpart C--Development

905.210 Development priorities. The requirements for development

priorities were removed from U.S. Housing Act of 1937, as amended, by

the Housing and Community Development Act of 1992. Accordingly, the

requirements currently contained in existing Sec. 905.210 are not

contained in the proposed rule.

905.212 Authority for proceeding without HUD approval [Renumbered

950.210]. As part of the revisions to subparts B and C of part 905, to

remove specific requirements for ``high risk'' IHA processing, this

section had been modified to provide for HUD to require an IHA to

obtain approval for additional processing steps where it is determined

necessary. The section includes three circumstances where HUD may

impose additional requirements on an IHA during the development period.

905.215 Production methods and requirements [Retitled ``Production

methods'']. The explanations of the usual methods of development used

by IHAs have been abbreviated in the proposed rule and a clarification

has been made that an IHA can use whatever method of development it

chooses so long as the method is not counter to the requirements of 24

CFR part 85. HUD believes that this revision expands the opportunities

for IHAs to utilize new and innovative means of producing housing and

may result in lower cost housing developed in shorter time periods.

The listing of public advertisement requirements has been removed.

These requirements are more fully covered in 24 CFR part 85 and the

program handbooks.

905.220 Application procedures [Renumbered 950.225, and retitled

``Application'']. Timeframes for beginning review of applications;

initial review and request for supplemental information steps; and

other processing instructions have been removed from this section.

Processing steps such as these are more appropriately covered in the

program handbook and, if necessary, in the program NOFA.

The term ``ranked'' in existing paragraph (c) of this section has

been replaced with the correct term--``rated''. Projects are rated by

program type but ranked together to arrive at an ordered list for

funding determinations.

The proposed rule clarifies that project funds cannot be used for

expenses of another project except for comprehensive planning. This

requirement is in the current regulations but is not clear.

The limitation on planning funds of 3 percent of the program

reservation has been removed. Experience has shown that an arbitrary

percentage is impractical with the result being that many IHAs either

requesting a waiver of the 3 percent limitation or delaying payment of

incurred expenses. The proposed language specifies that IHAs must

justify the level of funding for planning regardless of the amount

requested.

The word ``cluster'' has been removed from examples contained in

the comprehensive housing plan section. The removal of this term

clarifies that comprehensive planning is not limited to cluster or

subdivision housing sites.

950.230 Project coordination [New section]. A new section has been

added to address project coordination. The new section specifies that

IHAs must plan for the development with the tribe, utility companies,

and other state or Federal agencies and schedule completion of these

activities. While IHAs have always participated in the coordination of

project planning, HUD frequently took a leadership role in the past.

With the removal of HUD from most aspects of planning coordination

relative to all projects unless otherwise specified (Sec. 905.210),

this section clarifies that the IHA is fully responsible for project

coordination. The section also requires that a project coordination

schedule be provided to HUD for monitoring purposes.

905.225 IHA development program [Renumbered 950.260]. A

clarification was made to this section to specify that the Development

Program is to be submitted in accordance with the project schedule.

This was added to emphasize that the IHA is responsible for planning

its project and implementing the plan.

905.230 Site selection criteria [Renumbered 950.235]. The

requirements contained in this section have been significantly modified

to reduced regulatory requirements. These changes include (1)

simplifying this section to state that all utilities needed for the

project will be committed before final site approval; (2) removing

requirements for topography, subsurface conditions and natural hazards,

flooding, and multi-unit and scattered sites (these items are either

addressed under other requirements of this part (flooding) or are more

appropriately addressed in the program handbook); and (3) changing

maximum site size from one acre to a local determination based on needs

of housing occupants.

905.235 Types of interest in land [Renumbered 950.240]. A

clarification was made to this section, to be consistent with the

statute, that all property included in the project must be exempt from

state or local real and personal property tax.

905.240 Appraisals [Renumbered 950.245]. This section was

simplified to require compliance with the Uniform Relocation and

Assistance Act. The part of this section which attempted to instruct

the IHA on how to perform an appraisal was removed.

Additionally, clarification was provided that an appraisal is not

required for any donated property that has a value of $1,500 or less,

regardless of the source of the donation.

The requirement for HUD approval of appraisals was removed. If a

Field Office determines that a project should be processed under the

``assisted'' method, review of appraisals can be required.

905.245 Site approval [Renumbered 950.250]. This section has been

restructured to clarify the site approval process. Revised provisions

include (1) clarification that the IHA may submit a site approval

certification with the development program in lieu of the supporting

documents; (2) clarification of the method to be followed by the IHA in

determining tentative site approval; and (3) clarification of the

environmental clearance process and how it will be conducted jointly by

HUD and the IHA; and, removal of the requirement that HUD inspect all

sites.

905.250 Design criteria [Renumbered 950.255]. This section was

modified to include (1) Model Energy Code requirements; (2) IHA Board

of Commissioners designation of applicable codes in the absence of

tribal adoption; (3) clarification that designs must be approved by

local or tribal regulatory agencies and the BIA and/or IHS, where

applicable. Additionally, the moderate housing design requirement was

moved to this section.

905.255 Total development cost standard [Renumbered 950.220 and

retitled ``Total development cost'']. HUD processing and procedure

requirements were removed from this section. These requirements are

more appropriately located in the program handbook or notices.

Wording was added to clarify that tenant training includes

homebuyers and tenants. This has been previously authorized under the

program with tenant counseling discussed here, and a parallel

authorization for homebuyers under subpart E of part 905.

Provisions have been added to allow for the escrow of insurance

premium funds to assist in closeout of development programs. Currently,

a development program must be held open until all expenses have been

incurred and paid. This change will allow for certain development

programs to be closed in a shorter period.

905.260 Construction and inspections [Renumbered 950.265]. The

submission requirements of plans, specifications, and other contract

documents have been listed to clarify when the submissions must be made

and what is to be included. Clarification also has been added that

submissions are not due to be provided to HUD until after award of a

contract by the IHA.

A new subsection has been added clarifying that the IHA has the

responsibility to coordinate construction inspections with other

agencies.

A new subsection, ``Construction completion and settlement,'' has

been added to distinguish between the construction period and the

closeout period of project development. Provisions from existing

Sec. 905.260 that address completion and settlement will be addressed

in this section. In addition the following has been modified to provide

clarification and structure to the process:

HUD's involvement in the final inspection process for standard

method IHAs has been removed. Other agencies who may be required to

attend the final inspection have been added to the participant list for

the final inspection.

This section also has been revised to clarify the procedures for

contract settlement to include an interim and final certificate of

completion, and to clarify that IHAs may make payment to contractors

without prior HUD approval.

Submittal requirements for completion documents to HUD have been

included in this section.

905.265 Warranty inspections and enforcement [Renumbered 950.275].

This section was revised to clarify that two inspections are the

minimum requirement during the warranty period; one within six months

of the start of the warranty period and one prior to the expiration of

the warranty. This is not a new requirement but the wording of this

section was modified to remove possible confusion.

905.270 Correcting deficiencies [Renumbered 950.280]. This section

was revised to clarify that modernization funds or IHA held funds may

be used to correct design or construction deficiencies. This is not a

new authority but serves to list in one place the potential funding

sources to address design or construction deficiencies (DCDs). This

section also was revised to clarify that HUD is under no obligation to

fund correction of DCDs.

Subpart D--Operation

General Changes

The subpart has been generally revised to provide for a clearer

organization of information.

Specific Changes

905.301 Admission policies. The ``broad range of incomes''

language in Sec. 950.301(a)(2)(ii) would include reference to the

statutory change in section 501 of National Affordable Housing Act

(NAHA) that now requires adherence to the requirement to attain a

tenant mix with a broad range of incomes ``to the maximum extent

feasible.''

Additionally, Sec. 950.301(a)(2)(iv) would include the increase

from 10 percent to 30 percent of non-Federal preference holders

eligible for admission to Indian housing programs as permitted under

section 501 of the NAHA.

905.335 Rent and homebuyer payment collection policy. This section

has been revised to include the phrase ``and homebuyer'' after the word

``rent'' to emphasize that collection payment policies apply to Mutual

Help (MH).

Subpart E--Mutual Help Homeownership Opportunity Program

General Changes

HUD recognized that changes were needed to the Indian program, such

as Mutual Help (MH), to assure that services provided to the Tribes and

the residents continue to be in their best interests. Accordingly, the

changes made to this subpart were directed to make the MH program more

efficient.

905.404 Program framework. In an effort to streamline the

regulation, this section has been removed. As commenters indicated, the

information outlined here is already located in subparts C and E of

part 905. This does not eliminate the necessity for an ACC, MHO

Agreement or Construction Contract, however.

905.407 Application. This section has been removed. (See new

Sec. 950.225, Application, discussed earlier in this preamble.)

905.410 HUD review of application. This section has been removed.

905.416 Selection of MH homebuyers. The provisions of

Sec. 905.301(a)(3)(vi) would be contained in Sec. 950.416(a)(3) and

revised to reflect changes made in this subpart regarding the

determination of purchase prices and the designation of a successor.

Paragraph (a)(3) of new Sec. 950.416 provides that the IHA's admission

policies for MH projects should be different from those for its rental

or Turnkey III projects. The policies for the MH program should provide

standards for determining a homebuyer's:

--Ability to provide maintenance for the unit;

-- Potential for maintaining at least the current income return--

successor to a unit at the time of an ``event.'' (``Event'' should also

be defined by the IHA in its policy); and

-- Initial purchase price and the purchase price for a subsequent

homebuyer.

Paragraph (e) of new Sec. 950.416 would be strengthened and

clarified to address the comments received. The following language has

been added to this section: ``Ownership or use of a decent, safe and

sanitary residence other than the MH home at the time of occupancy or

acquisition during occupancy would disqualify a family from the MH

program.''

905.419 MH Contribution. The requirement in existing

Sec. 905.419(3) for HUD approval has been removed in the new

Sec. 950.419(3).

905.425 Inspections, responsibility for items covered by warranty.

The language in paragraph (a) of this section has been revised in new

Sec. 950.425(a) to clarify that the homebuyer move-in inspection could

be the final inspection with the contractor, IHA, and homebuyer or a

separate inspection with the IHA and homebuyer.

Paragraph (c) of existing Sec. 905.425 has been removed since it is

contained in Sec. 950.428.

905.427 Homebuyer payments--post-1976 projects. This section has

been revised to eliminate HUD approval of the amount of monthly payment

for New MH program developments and HUD approval of the specific

percentage the IHA will use to determine the monthly payment in Mutual

Help.

905.431 Operating reserve. The language in this section that

requires HUD approval of unanticipated costs has been removed.

950.432 Operating budget submission and approval [New section]. A

new section has been added to this subpart to provide for the operating

budget submission for Mutual Help. Subpart J does not apply to the

Mutual Help program. Therefore, no guidance is given for IHAs

submitting budgets for this program.

905.434 Operating subsidy. HUD is proposing a revision to the

current method of determining subsidy for counseling and training. HUD

proposes the use of a formula for providing subsidy to IHAs in these

two areas, and seeks comment from the Indian housing community on the

specific formula to be used. The formula approach will eliminate the

need for IHAs to submit specific training and counseling budgets

annually.

Subject to appropriations, an additional category of subsidy

eligibility is also being added. Funding of up to $25 per unit per year

would be made available to an IHA with a duly elected resident

organization for resident participation activities. Of this amount, $15

per unit per year shall fund resident participation activities of the

resident organization. IHAs should refer to 905.965, Funding Resident

Participation and 905.967, Eligible TOP Activities.

905.437 Homebuyer reserves and accounts. The Voluntary Equity

Payments Account (VEPA) has been removed from this section since it was

not necessary and seldom used.

Substantial revision was made to the provision concerning reserves

in this section. Several requests were made to revise the section on

investment of equity funds to allow IHAs to utilize the homebuyer's

monthly equity payments account (MEPA), provided that a portion is

maintained as a reserve. It was suggested that a sufficient amount of

funds should be maintained in a secured investment for use if

homebuyers terminate the mutual help and occupancy agreement (MHOA) and

equity funds are to be disbursed. HUD agrees with the comment but also

believes that HUD local office approval should be a part of the process

to insure that the IHA has administrative capability prior to using the

equity funds. Proposed regulatory language is as follows:

Notwithstanding other provisions of this subpart and subject to

HUD Field Office approval, an IHA may use a portion of the

homebuyers' equity accounts for low-income housing purposes provided

that a reserve of homebuyers' MEPA is maintained. The reserve must

be at a percentage established by the IHA and approved by the HUD

Field Office.

905.440 Purchase of home. In paragraph (a) of this section, the

reference to 24 CFR 203.43(h) was removed. In new Sec. 950.440(b), the

details on determining the purchase price have been streamlined. The

proposed language is as follows: ``(1) Initial purchase price. The

initial purchase price of a home for a homebuyer shall be determined by

the IHA.''

In paragraph (b)(2) of this section, the reference to the

prevailing interest rate for VA guaranteed mortgage loans at the time

the schedule is established was removed because VA no longer sets this

amount.

Paragraph (d) of this section concerning notice of eligibility for

financing was removed. Section 905.443/950.443 already outlines the IHA

homeownership financing guidelines. The need to notify families at the

time of each reexamination is burdensome.

In paragraph (e)(7) of this section, the last sentence regarding

the relationship with the homebuyer has been removed. It is repeated in

Sec. 950.443.

In paragraph (e)(8) of this section, the following language has

been added, ``Notwithstanding the above requirements, an IHA may

complete emergency and statutorily or regulatorily required

modernization work on a unit which is paid off but not conveyed, during

the term of the repayment schedule.''

Paragraph (e)(9)(ii) has been revised to read, ``Upon repayment of

the total delinquency, the IHA may, in accordance with

Sec. 950.602(e)(2), complete non-emergency modernization work on a unit

prior to conveyance.''

905.443 IHA homeownership financing. The homeownership financing

requirements have been streamlined. Additional guidance on IHA

financing will be provided in a handbook.

905.449 Succession upon death or mental incapacity [Renamed

``Succession'']. Revisions to this section are as follows:

In paragraph (a), language has been revised as follows, ``''Event''

means the death, mental incapacity, or other conditions as determined

by the IHA, of all of the persons who have executed the MHO Agreement

as homebuyers.''

In paragraph (b), language was added as follows: ``A homebuyer may

designate a successor who, at the time of the ``event'' would assume

the status of homebuyer, provided that the successor meets the

conditions established by the IHA which shall include satisfying

program eligibility requirements.'' The designation may be made at the

time of execution of the MHO Agreement, and the homebuyer may change

the designation at any later time by written notice to the IHA.

Paragraph (c) was revised to read, ``Upon occurrence of an `event',

the person designated as the successor shall succeed to the former

homebuyer's rights and responsibilities under the MHO Agreement if the

designated successor meets the criteria established by the IHA which

shall include program eligibility requirements.''

Paragraphs (c)(i) through (iv) and (c)(2) of this section were

removed. These paragraphs address current regulatory conditions

applicable to HUD.

Paragraph (d) was revised. The clause ``or if any of the conditions

in paragraph (c) of this section are not met by the designated

successor'' has been removed.

905.453 Counseling of homebuyers. Funding of counseling has been

modified to eliminate the $500 maximum contained in the current

regulation for development. Counseling cost will now be determined by

the IHA with no minimum or maximum amount. The maximum amount will be a

factor of the IHA's needs and the availability of funds within the

development program.

Additionally, all portions of this section with the exception of

(1) the requirement to submit a counseling program to the HUD Field

Office for approval, (2) the requirement for an annual report and (3)

the termination process have been removed. The IHA will have the

flexibility to design a program to meet their needs.

Subpart F--Self-Help Development in the Mutual Help Homeownership

Opportunity Program

905.463 Basic requirements [renumbered 950.475] Section 950.463(d)

has been removed. A detailed discussion is already in the program

handbook.

Paragraph (d) of this section has been removed. Construction tasks

are more appropriately included in the program handbook.

Subpart G--Turnkey III Program

The revisions to this subpart are designed to streamline the

Turnkey III program regulations as appropriate to the present status of

the program, which is limited to the management, operation, conversion

and sale of the remaining unsold Turnkey III units only. Accordingly,

language concerning development and initial occupancy of new projects

was removed.

At the present time, there are only about 30 IHAs with active

Turnkey III programs, and the total inventory of Turnkey III homes

still in management nationwide amounts to 1,749 units. It is

anticipated that the remaining program inventory will be rapidly

reduced, and the rest of the Turnkey III homes will be sold or

converted to Mutual Help and the program completely closed out within

the next few years.

905.501 Introduction. This section was streamlined to provide only

essential elements of the Turnkey III program.

A new paragraph (5), ``Program Overview,'' was added to provide a

brief description of how the Turnkey III Program works. This paragraph

is added for the orientation of the reader who wants basic information

about the general nature of the program.

905.503 Conversions of Turnkey III units and transfer of occupants

[Retitled ``Conversion of Turnkey III developments'']. The requirements

of this section have been streamlined. The conversion procedures are

now similar to those in Secs. 950.455 and 950.458 which cover

conversions of rental and Mutual Help programs, and simplify the

process and provide consistency from one program to another.

905.505 Selection of Turnkey III homebuyers [Retitled

``Eligibility and selection of Turnkey III homebuyers'']. This section

was retitled to clarify basic provisions on homebuyer requirements.

Paragraph (a) of this section was retitled ``Applications'' to

clarify basic provisions on homebuyer requirements.

The ``Turnkey III waiting list'' provisions have been eliminated

from this section, and replaced with streamlined requirements in

paragraph (b) titled ``Selection and notification of homebuyers.''

905.507 Homebuyer Ownership Opportunity Agreements (HOOA).

Paragraph (c) of this section, ``New agreements'', has been removed

because the information is adequately covered in other sections of the

regulation.

905.511 Homebuyers' association and homeowners' association

[Retitled ``Homebuyers Association (HBA)'']. This section has been

retitled to reflect that this section only addresses information on the

HBA. Homeowners' associations are addressed in Sec. 950.512.

Additionally, the requirements in paragraph (a) of this section have

been streamlined.

950.512 Homeowners' association (HOA) [New section]. This section

has been added to discuss HOAs.

905.513 Break-even amount and application of monthly payments. The

requirements of this section have been streamlined and paragraph (d)

has been revised to insert limits on EHPA/NRMR credits in circumstances

specified.

905.515 Monthly operating expense. Paragraph (c) of this section

titled ``Provision for common property maintenance'' has been removed.

905.517 Earned Home Payments Account (EHPA). Paragraphs (c)(1)

(i), (ii), (iii) and (2) concerning exercise of option and required

amount in EHPA have been removed for the purpose of expediting sale to

subsequent homebuyers without their having to wait two years.

905.521 Operating reserve. Paragraph (b) of this section titled

``Nonroutine maintenance--common property (contribution to operating

reserve)'' has been revised to remove all references to maximum

operating reserve. Paragraph (c) of this section has been removed.

905.525 Achievement of Ownership [Retitled ``Purchase price and

methods of purchase'']. Revisions have been made to this section

regarding the terms of sale to original and subsequent homebuyers.

Based on comments received, the procedures for determining the purchase

price and the term of the purchase price schedule have been changed to

agree with the Mutual Help program.

A new subparagraph (c)(5) has been added to make clear that IHA

financing is allowed, without the need for HUD approval, just like in

the MH program (see Sec. 950.440, Purchase of Home).

905.527 Payment upon resale at profit. A new paragraph (c) titled

``Death of Homeowner'' has been added to respond to any questions

concerning the death of the homebuyer before the end of the five-year

period of the promissory note.

Subpart I--Modernization

The Comprehensive Grant Program (CGP) portion of this subpart has

been revised in an effort to simplify and streamline the CGP process.

The revised CGP regulation, which includes both the Indian housing and

public housing CGP regulations, was published as a proposed rule on

March 8, 1994 (59 FR 10876). The revisions were made in consultation

with the housing authorities and interest groups which included

representation from the National American Indian Housing Council

(NAIHC). Additional changes to the proposed version of the CGP

regulation are included in this proposed rule. Indian Housing

Authorities (IHAs) are encouraged to provide any additional comments

they may have on this program. Additionally, in this proposed part 950

rule, changes to the General Provisions and Comprehensive Improvement

Assistance Program (CIAP) sections of subpart I are also proposed to be

made.

A recommendation to remove the CIAP requirement that states that

each development for which work is proposed must be at least three

years old from the end of the initial operating period has been adopted

in the proposed revisions to the CIAP regulation.

905.602 Special requirements for TKIII and Mutual Help

developments. The requirements for TKIII homebuyers to be charged for

the cost of modernization work have been removed.

This section also has been revised to allow IHAs to modernize

Mutual Help units which are paid off but not conveyed.

Changes have been made to allow IHAs to do work necessary to meet

statutory or regulatory requirements in TKIII units which are paid off,

so long as the work is completed prior to conveyance

Comprehensive Improvement Assistance Program (CIAP)

905.618 Procedures for obtaining approval of a modernization

program. The following requirements have been removed from this

section: (1) that developments proposed for work must be at least three

years old from the date of EIOP; (2) that the submission of a fiscal

audit is an eligibility requirement; and (3) the use of a Declaration

of Trust as a requirement for Mutual Help units.

905.624 Resident and homebuyer participation. This section

consolidates homebuyer consultation requirements in one section by

removing special consultation requirements for TKIII homebuyers where

the cost of modernization work increased the amortization period of the

home.

905.633 Special requirements for section 23 leased housing bond-

financed development [Removed]. This section has been removed since

there is no longer any Section 23 housing management by IHAs.

905.635 Initiation of modernization activities. The requirement

for prior HUD approval of force account work has been removed from this

section.

Comprehensive Grant Program

Revisions have been made to make the $75 million set-aside for

emergencies and disasters available to CIAP housing authorities as well

as CGP housing authorities.

Also, changes were made to continue the rolling base concept of the

Five-Year Action Plan. The regulations now allow for full

interchangability of work items in any of the five years.

The following provisions have been removed from the CGP

requirements:

1. The annual Statement by making the level of detail for

describing work items the same for each year of the Five-Year Plan;

2. The concept of ``major changes'' has been eliminated since IHAs

would be able to move work items within any of the five years of the

plan; however, amendments to the Annual Work Statement would be

required where any work items are added which are not in the Five-Year

Action Plan;

3. The optional two-year Annual Statement;

4. The presumptive estimate by providing only a final formula

amount;

5. The requirement for an initial notice and specific notification

of democratically elected presidents of resident organizations but

public notice is required prior to the advance meeting and public

hearing;

6. The specified three week time frame for holding the advance

meeting before the public hearing;

7. The requirement for use of a Declaration of Trust for Mutual

help units;

8. The Executive Summary as a separate document; and

9. The requirement for prior approval of force account work.

The percentage limitation on management improvements from 10 to 20

percent has been increased for all IHAs. IHAs determined by the ONAP to

be ``high performing'' would have no percentage limitation on

management improvements.

The revisions proposed allow IHAs to hold the advance meeting for

residents and the public hearing earlier in the year by using the

formula amount for the current year as the planning level for the

coming year.

905.666 Eligible costs. The charge to TKIII homebuyers for the

cost of health and safety work items has been removed from this

section. Also removed from this section is the requirement for IHAs to

keep records by unit of the substantial rehabilitation of TKIII units,

and the requirement for IHAs to demonstrate that the proposed

substantial rehabilitation of vacant or non-homebuyer occupied TKIII

units will bring the units into full compliance with the homeownership

objectives of subpart G. Additionally, the proposed rule removes the

language requiring that to the ``maximum extent feasible'' IHAs should

use their management improvement funds to train residents.

Subpart J--Operating Subsidy

905.715 Computation of utilities expense level. Revisions have

been made to this section to extend, for a period not to exceed an

additional six (6) years, the existing arrangement under which an IHA

may share equally with HUD any cost reductions due to the differences

between projected and actual utility rates in the first year reductions

occur. Similar changes were made in Sec. 905/950.730, discussed below.

950.720 Other costs. Revisions were made to paragraph (b)(2) of

this section. The revisions include removing the need for a waiver

before operating subsidy may be paid for certain units approved for

nondwelling use to promote economic self-sufficiency and anti-drug

activities.

905.730 Adjustments. The 60 day deadline in this section for

requesting a revision of an IHA's Allowable Expense Level in

950.730(f)(3)) has been removed.

905.740 Operating reserves. The maximum operating reserve

requirement has been removed from this section. IHAs will be required

to maintain sufficient working capital for future nonroutine

maintenance requirements, insurance premiums and unanticipated project

requirements.

905.772 Operating subsidy eligibility for projects owned by IHAs

in Alaska [Renumbered 950.774]. In the proposed rule, the provisions of

this section are in Sec. 950.774. Additionally, the provisions of

subpart N have been incorporated into subpart J to address Alaska's non

PFS status and the need for them to comply with budget submission

requirements.

950.772 Financial management systems, monitoring and reporting. In

the existing regulations, these provisions are found in Sec. 905.950 of

subpart N. In the proposed rule, these provisions are in Sec. 950.772

and apply to all programs.

Subpart K--Energy Audits, Energy Conservation Measures and Utility

Allowances General Changes

In the majority of sections in this subpart, the examples of

methodologies of performing energy audits have removed. These examples

will be placed, more appropriately, in the Indian Housing Management

Handbook.

Descriptions of specific energy saving items, such as ceiling

insulation and timers for hot water heaters, have been removed from

this subpart and also will be addressed in the Handbook.

905.807 Energy conservation measures [Removed].This section will

be moved in its entirety to the Handbook.

905.810 Order of funding. Paragraphs (b) and (c) of this section

have been removed, and their provisions will be addressed in the

Handbook.

905.815 Energy conservation equipment (renamed Energy conservation

equipment and practices). The list of energy conservation equipment has

been removed and will be placed in the Handbook.

905.822 Compliance schedule, and 905.848 Compliance schedule. Both

sections have been revised to eliminate dates that have passed, and

therefore are no longer applicable.

905.842 Benefit/cost analysis. The methodology for performing a

benefit/cost analysis has been removed and will be addressed in the

Handbook.

905.870 Standards for allowances for utilities. This section has

been edited to remove duplicative language.

Subpart L--Operation of Projects After Expiration of Initial ACC

Term

No comments were received on this subpart from IHAs and Tribal

officials, and no changes are proposed. Therefore, this subpart is not

being published for comment.

Subpart M--Disposition or Demolition of Projects

General Changes

This subpart has been streamlined by removing sections and

subsections that are more appropriate in a handbook (those regulatory

provisions that merely provide examples). The removed provisions will

be incorporated in the Indian Housing Management Handbook.

Specific Changes

905.925 Relocation of displaced tenants [Removed]. This section

was removed by a technical amendment and replaced by Sec. 950.117.

950.925 Resident organization opportunity to purchase [New

section]. A new Sec. 950.925 which implements the new statutory

requirements on this subject contained in the Federal Register of

October 6, 1992 (57 FR 46074), has been added.

905.933 Use of Proceeds. Paragraph (a)(2) of this section titled

``Proceeds of a Disposition'' was revised to reflect the statutory

requirement for application of a proportional ratio in scattered site

housing when satisfying outstanding debt obligations of a project.

950.937 Reports and records [Removed]. This section was removed

and the subject matter of this section will be addressed in the

Handbook.

Subpart O--Resident Participation and Opportunities

General Changes

The proposed rule on Resident Participation and Opportunities in

Indian Housing, 24 CFR 905, subpart O, was published in the Federal

Register on April 19, 1994 (59 FR 18666). Comments were due May 19,

1994. HUD anticipates publishing a final rule on subpart O that takes

into consideration public comment in the summer of 1994. Because the

proposed rule on subpart O was recently published, this proposed rule

does not republish subpart O.

Subpart P--Section 5(h) Homeownership Program

HUD is currently preparing the final rule on section 5(h) for

publication. The interim rule was published September 20, 1991 (56 FR

47866), made effective October 21, 1991, and is codified at 24 CFR part

906, and part 905, subpart P. The final rule makes the following

changes:

1. It streamlines the rules for the Section 5(h) Program;

2. It allows more flexibility in the regulatory requirements of the

Section 5(h) Program; and

3. It requires only what is statutory according to the United

States Housing Act of 1937 and provides additional technical guidance

will be provided in a forthcoming handbook.

The major change to be made in the final rule is the clarification

that the section 5(h) program applies to the Mutual Help and Turnkey

III programs.

No comments were received from the Native American community during

the comment period of the interim rule, or during the recent

consultation with IHAs and Tribal officials. Accordingly, subpart P is

not republished in this proposed rule for further comment.

Subpart R--Indian Housing Family Self-Sufficiency (FSS) Program

HUD proposes to make very few changes to the regulation

implementing the FSS program because the current regulation reflects

the statutory provisions of section 23 of the U.S. Housing Act of 1937

(42 U.S.C. 1437u). However, the following minor changes have been made

to streamline the policies and procedures applicable to the FSS program

under HUD's Indian housing program.

905.3012 Program Coordinating Committee (PCC). In paragraph (b)(1)

of this section, the heading ``Required Membership'' has been removed

as the statutory provision does not contain language that directs IHAs

to have a required membership. In this paragraph, the word ``must'' in

the phrase ``The PCC must'' has been removed and the word ``may'' has

been substituted. The U.S. Housing Act of 1937 does not require IHA

representatives or residents of the IHA to be members of the PCC.

Paragraph (b)(2) states that ``the PCC should . . .''. The ``should

has been removed and word ``may'' substituted for the same reasons

stated above.

IV. Other Matters

Finding of No Significant 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 that

implement section 102(2)(C) of the National Environmental Policy Act of

1969 (42 U.S.C. 4332). The Finding of No Significant Impact is

available for public inspection and copying during regular business

hours (7:30 a.m. to 5:00 p.m. weekdays) in the Office of the Rules

Docket Clerk, Room 10272, 451 Seventh Street, S.W., Washington, D.C.

20410.

Regulatory Flexibility Act

The Secretary, in accordance with the Regulatory Flexibility Act (5

U.S.C. 605(b)), has reviewed this proposed rule before publication and

by approving it certifies that this proposed rule does not have a

significant economic impact on a substantial number of small entities.

The proposed rule would make a number of amendments to the Indian

Housing Consolidated regulations to simplify program processes, reduce

the number of regulatory requirements, and to provide more flexibility

to local Tribal and Indian housing authority officials in the

administration of the Indian Housing program.

Executive Order 12612, Federalism

The General Counsel, as the Designated Official under section 6(a)

of Executive Order 12612, Federalism, has determined that the policies

contained in this proposed rule will not have substantial direct

effects on states or their political subdivisions, or the relationship

between the Federal government and the States, or on the distribution

of power and responsibilities among the various levels of government.

As a result, the proposed rule is not subject to review under the

order.

Executive Order 12606, the Family

The General Counsel, as the Designated Official under Executive

Order 12606, The Family, has determined that this proposed rule does

not have potential for significant impact on family formation,

maintenance, and general well-being, and, thus, is not subject to

review under the order. No significant change in existing HUD policies

or programs will result from promulgation of this rule, as those

policies and programs relate to family concerns.

Regulatory Agenda

This proposed rule was listed as sequence number 1681 in the

Department's Semiannual Regulatory Agenda published on April 25, 1994

(59 FR 20424, 20468) in accordance with Executive Order 12866 and the

Regulatory Flexibility Act.

The Catalog of Domestic Assistance numbers for the programs

affected by this proposed rule are 14.146, 14.147, 14.850, 14.851,

14.852, and 15.141.

List of Subjects in 24 CFR Part 950

Aged, Grant programs--housing and community development, Grant

programs--Indians, Disability, Homeownership, Indians, Low and moderate

income housing, Public housing, Reporting and recordkeeping

requirements.

Accordingly, and under the authority of 42 U.S.C. 3535(d), title 24

of the Code of Federal Regulations would be amended by:

1. Redesignating part 905 as part 950;

2. Revising the table of contents for the newly designated part

950;

3. Revising subparts A--G, I, J, K, and M;

4. Reserving subpart Q; and

5. Adding a new subpart R, consisting of Secs. 950.3001 through

950.3030, as follows:

PART 950--INDIAN HOUSING PROGRAMS

Subpart A--General

Sec.

950.101 Applicability and scope.

950.102 Definitions.

950.110 Assistance from Indian Health Service and Bureau of Indian

Affairs.

950.115 Applicability of civil rights requirements.

950.117 Displacement, relocation, and acquisition.

950.120 Compliance with other Federal requirements.

950.125 Establishment of IHAs pursuant to State law.

950.126 Establishment of IHAs by Tribal ordinance.

950.130 IHA Commissioners who are tenants or homebuyers.

950.135 Administrative capability.

Subpart B--Procurement

950.160 Procurement standards.

950.165 Methods of procurement.

950.170 Other requirements applicable to development contracts.

950.172 Wage rates.

950.175 Indian preference requirements.

950.190 Insurance.

Subpart C--Development

950.200 Roles and responsibilities of Federal agencies.

950.205 Allocation.

950.210 Authority for proceeding without HUD approval.

950.215 Production methods.

950.220 Total development cost.

950.225 Application.

950.230 Project coordination.

950.235 Site selection criteria.

950.240 Types of interest in land.

950.245 Appraisals.

950.250 Site approval.

950.255 Design criteria.

950.260 IHA development program.

950.265 Construction and inspections.

950.270 Construction completion and settlement.

950.275 Warranty inspections and enforcement.

950.280 Correcting deficiencies.

950.285 Fiscal closeout.

Subpart D--Operation

950.301 Admission policies.

950.305 Federal selection preferences.

950.310 [Reserved].

950.315 Initial determination, verification, and reexamination of

family income and composition.

950.320 Determination of rents and homebuyer payments.

950.325 Total tenant payment--Rental and Turnkey III programs.

950.335 Rent and homebuyer payment collection policy.

950.340 Grievance procedures and leases.

950.345 Maintenance and improvements.

950.346 Fire safety.

950.360 IHA employment practices.

Subpart E--Mutual Help Homeownership Opportunity Program

950.401 Scope and applicability.

950.413 Special provisions for development of an MH project.

950.416 Selection of MH homebuyers.

950.419 MH contribution.

950.422 Commencement of occupancy.

950.425 Inspections, responsibility for items covered by warranty.

950.426 Homebuyer payments--pre-1976 projects.

950.427 Homebuyer payments--post-1976 projects.

950.428 Maintenance, utilities, and use of home.

950.431 Operating reserve.

950.432 Operating budget submission and approval.

950.434 Operating subsidy.

950.437 Homebuyer reserves and accounts.

950.440 Purchase of home.

950.443 IHA homeownership financing.

950.446 Termination of MHO agreement.

950.449 Succession.

950.452 Miscellaneous.

950.453 Counseling of homebuyers.

950.455 Conversion of rental projects.

950.458 Conversion of Mutual Help projects to Rental Program.

Subpart F--Self-Help Development in the Mutual Help Homeownership

Program

950.470 Purpose and applicability.

950.475 Basic requirements.

950.480 Self-Help agreement.

950.485 Application.

950.490 Development program.

950.495 Default of self-help agreement.

Subpart G--Turnkey III Program

950.501 Introduction.

950.503 Conversion of Turnkey III developments.

950.505 Eligibility and selection of Turnkey III homebuyers.

950.507 Homebuyer Ownership Opportunity Agreements (HOOA).

950.509 Responsibilities of homebuyer.

950.511 Homebuyers' association (HBA).

950.512 Homeowners' association (HOA).

950.513 Breakeven amount and application of monthly payments.

950.515 Monthly operating expense.

950.517 Earned Home Payments Account (EHPA).

950.519 Nonroutine Maintenance Reserve (NRMR).

950.521 Operating reserve.

950.523 Operating subsidy.

950.525 Purchase price and methods of purchase.

950.527 Payment upon resale at profit.

950.529 Termination of Homebuyer Ownership Opportunity Agreement.

Subpart H--Lead-Based Paint Poisoning Prevention

950.551 Purpose and applicability.

950.553 Testing and abatement applicable to development.

950.555 Testing and abatement applicable to modernization.

950.560 Notification.

950.565 Maintenance obligation; defective paint surfaces.

950.570 Procedures involving EBLs.

950.575 Compliance with Tribal, State and local laws.

950.580 Monitoring and enforcement.

Subpart I--Modernization Program

General Provisions

950.600 Purpose and applicability.

950.601 Allocation of funds under Section 14.

950.602 Special requirements for Turnkey III and Mutual Help

developments.

950.603 Modernization and energy conservation standards.

Comprehensive Improvement Assistance Program (for IHAs That Own or

Operate Fewer Than 250 Indian Housing Units

950.609 Purpose.

950.615 Eligible costs.

950.618 Procedures for obtaining approval of a modernization

program.

950.624 Resident and homebuyer participation.

950.635 Initiation of modernization activities.

950.639 Fund requisitions.

950.642 Contracting requirements.

950.645 On-site inspections.

950.648 Budget revisions.

950.651 Progress reports.

950.654 HUD review of IHA performance.

950.657 Fiscal closeout.

Comprehensive Grant Program (for IHAs That Own or Operate 250 or More

Indian Housing Units

950.660 Purpose.

950.666 Eligible costs.

950.667 Reserve for emergencies and disasters.

950.669 Allocation of assistance.

950.672 Comprehensive Plan (including Five-Year Action Plan).

950.675 HUD review and approval of Comprehensive Plan (including

action plan).

950.678 Annual Submission of activities and expenditures.

950.681 Conduct of modernization activities.

950.684 IHA Performance and Evaluation Report.

950.687 HUD review of IHA performance.

Subpart J--Operating Subsidy

950.701 Purpose and applicability.

950.705 Determination of amount of operating subsidy under PFS.

950.710 Computation of allowable expense level.

950.715 Computation of utilities expense level.

950.720 Other costs.

950.725 Projected operating income level.

950.730 Adjustments.

950.735 Transition funding for excessive high-cost IHAs.

950.740 Operating reserves.

950.745 Operating budget submission and approval.

950.750 Payment procedure for operating subsidy under PFS.

950.755 Payments of operating subsidy conditioned upon

reexamination of income of families in occupancy.

950.760 Determining actual occupancy percentage.

950.770 Comprehensive Occupancy Plan requirements.

950.772 Financial management systems, monitoring and reporting.

950.774 Operating subsidy eligibility for projects owned by IHAs in

Alaska.

Subpart K--Energy Audits, Energy Conservation Measures and Utility

Allowances

950.801 Purpose and applicability.

Energy Audits and Energy Conservation Measures

950.805 Requirements for energy audits.

950.810 Order of funding.

950.812 Funding.

950.815 Energy conservation equipment and practices.

950.822 Compliance schedule.

950.825 Energy performance contracts.

Individual Metering of Utilities

950.840 Individually metered utilities.

950.842 Benefit/cost analysis.

950.844 Funding.

950.845 Order of conversion.

950.846 Actions affecting residents.

950.849 Waivers for similar projects.

950.850 Reevaluations of mastermeter systems.

Resident Utility Allowances

950.860 Applicability.

950.865 Establishment of utility allowances by IHAs.

950.867 Categories for establishment of allowances.

950.869 Period for which allowances are established.

950.870 Standards for allowances for utilities.

950.872 Surcharges for excess consumption of IHA-furnished

utilities.

950.874 Review and revision of allowances.

950.876 Individual relief.

Subpart L--Operation of Projects After Expiration of Initial ACC Term

950.901 Purpose and applicability.

950.903 Continuing eligibility for operating subsidy; ACC

extension.

950.905 ACC extension in absence of current operating subsidy.

950.907 HUD approval of disposition or demolition.

Subpart M--Disposition or Demolition of Projects

950.921 Purpose and applicability.

950.923 General requirements for HUD approval of disposition or

demolition.

950.925 Resident organization opportunity to purchase.

950.927 Specific criteria for HUD approval of disposition requests.

950.928 Specific criteria for HUD approval of demolition requests.

950.931 IHA application for HUD approval.

950.933 Use of proceeds.

950.935 Replacement housing plan.

Subpart N--Miscellaneous

950.950 Operating subsidy eligibility for projects owned by IHAs in

Alaska.

Subpart O--Resident Management and Participation

950.960 Purpose.

950.961 Applicablity and scope.

950.962 Definitions.

950.963 HUD's role in activities under this subpart.

950.964 Resident participation requirements.

950.965 Resident managment requirements.

950.966 Continued IHA responsibility to HUD.

950.967 Management specialist.

950.969 Modernization assistance.

950.970 Operating subsidy, preparation of operating budget,

operating reserves and retention of excess revenues.

950.971 Waiver of HUD requirements.

950.972 Audit and administrative requirements.

950.973 Technical assistance.

Subpart P--Section 5(h) Homeownership Program

950.1001 Purpose.

950.1002 Applicability.

950.1003 General authority for sale.

950.1004 Fundamental criteria for HUD approval.

950.1005 Resident consultation and involvement.

950.1006 Property that may be sold.

950.1007 Methods of sale and ownership.

950.1008 Purchase eligibility and selection.

950.1009 Counseling, training, and technical assistance.

950.1010 Nonpurchasing residents.

950.1011 Maintenance reserve.

950.1012 Purchase prices and financing.

950.1013 Protection against fraud and abuse.

950.1014 Limitation of resale profit.

950.1015 Use of sale proceeds.

950.1016 Replacement housing.

950.1017 Records, reports, and audits.

950.1018 Submission and review of homeownership plan.

950.1019 HUD approval and IHA-HUD implementing agreement.

950.1020 Content of homeownership plan.

950.1021 Supporting documentation.

Subpart Q--[Reserved]

Subpart R--Family Self Sufficiency

950.3001 Purpose, scope and applicability.

950.3002 Program objectives.

950.3003 Definitions.

950.3004 Basic requirements of the FSS program.

950.3011 Action Plan.

950.3012 Program Coordinating Committee (PCC).

950.3013 FSS family selection procedures.

950.3014 On-site facilities.

950.3020 Program implementation.

950.3021 Administrative fees.

950.3022 Contract of participation.

950.3024 Total tenant payment and increases in family income.

950.3025 FSS account.

950.3030 Reporting.

Authority: 25 U.S.C. 450e(b); 42 U.S.C. 1437aa-1437ee and

3535(d).

Subpart A--General

Sec. 950.101 Applicability and scope.

(a) General. (1) Under title II of the United States Housing Act of

1937, as added by the Indian Housing Act of 1988 (42 U.S.C. 1437aa, et

seq.), the U.S. Department of Housing and Urban Development (HUD)

provides financial and technical assistance to Indian Housing

Authorities (IHAs), for the development and operation of low income

housing projects in Indian areas. This part is applicable to such

projects developed or operated by an IHA in an Indian area, as defined

in Sec. 950.102.

(2) If assistance under this part is not available to a low income

family because the family desires housing in an area within which no

IHA is authorized to provide housing, or if for any other reason a

family desires housing assistance other than under this part, a family

may seek housing assistance under other HUD programs: (See 24 CFR part

203, chapter VIII of this title, as well as the remainder of chapter IX

of this title.)

(b) Other HUD regulations and requirements. The provisions of this

part are a complete statement of HUD regulations affecting the

development and operation of low income housing by IHAs except as

supplemented by parts in other chapters of this title, which are

referenced in this part.

Sec. 950.102 Definitions.

ACC expiration date. The last day of the term during which a

particular Indian housing project is subject to all or any of the

provisions of the ACC.

Act. The United States Housing Act of 1937 (42 U.S.C. 1437-1440).

Action plan. A plan of the actions to be funded by an IHA over a

period of five years (including an IHA's proposed allocation of its

modernization funds to a reserve established under Sec. 950.666(a)(3))

to make the necessary physical and management improvements identified

in the IHA's comprehensive plan under subpart I of this part. The plan

shall be based upon HUD's and the IHA's best estimates of the funding

reasonably expected to become available over the next five-year period.

The action plan is updated annually to reflect a rolling five-year

base.

Adjusted income. Annual income less the following allowances,

determined in accordance with HUD instructions:

(1) $480 for each dependent;

(2) $400 for any elderly family;

(3) For any family that is not an elderly family but has a

handicapped or disabled member other than the head of household or

spouse, handicapped assistance expenses in excess of three percent of

annual income, but this allowance may not exceed the employment income

received by family members who are 18 years of age or older as a result

of the assistance to the handicapped or disabled person;

(4) For any elderly family--

(i) That has no handicapped assistance expenses (as defined in this

section), an allowance for medical expenses (as defined in this

section) equal to the amount by which the medical expenses exceed three

percent of annual income;

(ii) That has handicapped assistance expenses greater than or equal

to three percent of annual income, an allowance for handicapped

assistance expenses computed in accordance with paragraph (3) of this

definition, plus an allowance for medical expenses that is equal to the

family's medical expenses;

(iii) That has handicapped assistance expenses that are less than

three percent of annual income, an allowance for combined handicapped

assistance expenses and medical expenses that is equal to the amount by

which the sum of these expenses exceeds three percent of annual income;

and

(5) Child care expenses, as defined in this section; and

(6) Excessive travel expenses, not to exceed $25 per family per

week, for employment- or education-related travel.

Administration charge. In Mutual Help projects, the amount budgeted

per-unit per-month for operating expense, exclusive of the cost of HUD-

approved expenditures for which operating subsidy is being provided in

accordance with Sec. 950.434 (see Sec. 950.427(c)).

Administrative capability assessment (ACA). An annual evaluation of

the IHA's administrative capability to administer programs in

compliance with the Act and all applicable HUD regulations, contracts,

HUD handbooks, and other applicable requirements (see Sec. 950.135).

Allowable expense level. In rental projects, the per-unit per-month

dollar amount of expenses (excluding utilities, and expenses allowed

under Sec. 950.720) computed in accordance with Sec. 950.710, which is

used to compute the amount of operating subsidy.

Allowable utilities consumption level (AUCL). In rental projects,

the amount of utilities expected to be consumed per-unit per-month by

the IHA during the requested budget year, which is equal to the average

amount consumed per-unit per-month during the rolling base period.

After the end of the requested budget year, the AUCL of the utility

(ies) used for space heating will be adjusted by a change factor, which

is defined in this section.

Annual contributions contract (ACC). A contract under the Act

between HUD and the IHA containing the terms and conditions under which

HUD assists the IHA in providing decent, safe, and sanitary housing for

low income families. The ACC must be in a form prescribed by HUD under

which HUD agrees to provide assistance in the development,

modernization and/or operation of a low income housing project under

the Act, and the IHA agrees to develop, modernize and operate the

project in compliance with all provisions of the ACC and the Act, and

all HUD regulations and implementing requirements and procedures.

Annual income. Annual income is the anticipated total income from

all sources received by the family head and spouse (even if temporarily

absent) and by each additional member of the family, including all net

income derived from assets, for the 12-month period following the

effective date of the initial determination or reexamination of income,

exclusive of certain types of income as provided in paragraph (2) of

this definition.

(1) Annual income includes, but is not limited to:

(i) The full amount, before any payroll deductions, of wages and

salaries, overtime pay, commissions, fees, tips and bonuses, and other

compensation for personal services;

(ii) The net income from operation of a business or profession.

Expenditures for business expansion or amortization of capital

indebtedness shall not be used as deductions in determining net income.

An allowance for depreciation of assets used in a business or

profession may be deducted, based on straight line depreciation, as

provided in Internal Revenue Service regulations. Any withdrawal of

cash or assets from the operation of a business or profession will be

included in income, except to the extent the withdrawal is

reimbursement of cash or assets invested in the operation by the

family;

(iii) Interest, dividends, and other net income of any kind from

real or personal property. Expenditures for amortization of capital

indebtedness shall not be used as deductions in determining net income.

An allowance for depreciation is permitted only as authorized in

paragraph (1)(ii) of this definition. Any withdrawal of cash or assets

from an investment will be included in income, except to the extent the

withdrawal is reimbursement of cash or assets invested by the family.

Where the family has net family assets in excess of $5,000, annual

income shall include the greater of the actual income derived from all

net family assets or a percentage of the value of such assets based on

the current passbook savings rate as determined by HUD;

(iv) The full amount of periodic payments received from social

security, annuities, insurance policies, retirement funds, pensions,

disability or death benefits and other similar types of periodic

receipts, including a lump-sum payment for the delayed start of a

periodic payment;

(v) Payments in lieu of earnings, such as unemployment and

disability compensation, worker's compensation and severance pay (but

see paragraph (2) (iii) of this definition);

(vi) Welfare assistance. If the welfare assistance payment includes

an amount specifically designated for shelter and utilities that is

subject to adjustment by the welfare assistance agency in accordance

with the actual cost of shelter and utilities, the amount of welfare

assistance income to be included as income shall consist of:

(A) The amount of the allowance or grant exclusive of the amount

specifically designated for shelter or utilities, plus

(B) The maximum amount that the welfare assistance agency could, in

fact, allow the family for shelter and utilities. If the family's

welfare assistance is ratably reduced from the standard of need by

applying a percentage, the amount calculated under paragraph (1)(vi)(B)

of this definition shall be the amount resulting from one application

of the percentage;

(vii) Periodic and determinable allowances, such as alimony and

child support payments, and regular contributions or gifts received

from persons not residing in the dwelling; and

(viii) All regular pay, special pay and allowances of a member of

the Armed Forces (but see paragraph (2)(vii) of this section).

(2) Annual income does not include the following:

(i) Income from employment of children (including foster children)

under the age of 18 years;

(ii) Payments received for the care of foster children;

(iii) Lump-sum additions to family assets, such as inheritances,

insurance payments (including payments under health and accident

insurance and worker's compensation), capital gains and settlement for

personal or property losses (but see paragraph (1)(v) of this

definition);

(iv) Amounts received by the family that are specifically for, or

in reimbursement of, the cost of medical expenses for any family

member;

(v) Income of a live-in aide;

(vi) Amounts of educational scholarships paid directly to the

student or to the educational institution, and amounts paid by the

Government to a veteran, for use in meeting the costs of tuition, fees,

books, equipment, materials, supplies, transportation and miscellaneous

personal expenses of the student. Any amount of such scholarship or

payment to a veteran that is made available for subsistence is to be

included in income;

(vii) The special pay to a family member serving in the Armed

Forces who is exposed to hostile fire;

(viii) (A) Amounts received under training programs funded by HUD;

(B) Amounts received by a disabled person that are disregarded for

a limited time for purposes of Supplemental Security Income eligibility

and benefits because they are set aside for use under a Plan for

Achieving Self-Support (PASS); or

(C) Amounts received by a participant in other publicly assisted

programs which are specifically for or in reimbursement of out-of-

pocket expenses incurred (special equipment, clothing, transportation,

child care, etc.) and which are made solely to allow participation in a

specific program;

(ix) Temporary, nonrecurring or sporadic income (including gifts);

(x) For all initial determinations and reexaminations of income

carried out on or after April 23, 1993, reparation payments paid by a

foreign government pursuant to claims filed under the laws of that

government by persons who were persecuted during the Nazi era; or

(xi) Amounts specifically excluded by any other Federal statute

from consideration as income for purposes of determining eligibility or

benefits under a category of assistance programs that includes

assistance under the United States Housing Act of 1937. A notice is

published from time to time in the Federal Register and distributed to

IHAs identifying the benefits that qualify for this exclusion. Updates

will be published and distributed when necessary.

(3) If it is not feasible to anticipate a level of income over a

12-month period, the income anticipated for a shorter period may be

annualized subject to a redetermination at the end of the shorter

period.

(4) Any family receiving the reparation payments referred to in

paragraph (2)(x) of this definition of Annual Income that has been

requested to repay assistance under this part as a result of receipt of

such payments shall not be required to make further repayments on or

after April 23, 1993.

Applicable surface. All intact and nonintact interior and exterior

painted surfaces of a residential structure.

Assisted dwelling unit. A dwelling unit assisted under the programs

covered by this part 950.

Base year. The IHA's fiscal year immediately preceding its first

fiscal year under PFS.

Base-year expense level. The expense level (excluding utilities,

audits, and certain other items) for the year, computed as provided in

Sec. 950.710(a)

Benefit/cost analysis. For purposes of subpart K of this part, a

direct comparison of the present worth of any savings generated by a

given system during the expected useful life of the system or the

estimated remaining life of the project, whichever is the shortest

number of years, to the cost of the change.

BIA. The Bureau of Indian Affairs in the Department of the

Interior.

Change factor. The ratio of the affected IHA fiscal year heating

degree days (HDD) divided by the average annual HDD of the rolling base

period. (Affected year HDD divided by rolling base period average HDD).

Checkmeter. A device for measuring utility consumption of each

individual dwelling unit where the utility service is supplied through

a mastermeter system. The IHA pays the utility supplier on the basis of

the mastermeter readings and uses the checkmeters to determine whether

and to what extent utility consumption of each dwelling unit is in

excess of the allowance for IHA-furnished utilities, established in

accordance with subpart K of this part.

Chewable surface. All chewable protruding painted surfaces up to

five feet from the floor or ground, which are readily accessible to

children under seven years of age, e.g., protruding corners,

windowsills and frames, doors and frames, and other protruding

woodwork.

Chief executive officer (CEO). The CEO of a unit of general local

government means the elected official or the legally designated

official who has the primary responsibility for the conduct of that

entity's governmental affairs. Examples of the CEO of a unit of general

local government are: the elected mayor of a municipality; the elected

county executive of a county; the chairperson of a county commission or

board in a county that has no elected county executive; or the official

designated pursuant to law by the governing body of a unit of general

local government (e.g., Tribal administrator). The CEO for an Indian

Tribe is the Tribal governing official.

Child care expenses. Amounts anticipated to be paid by the family

for the care of children under 13 years of age during the period for

which annual income is computed, but only where such care is necessary

to enable a family member to be gainfully employed or to further his or

her education only to the extent such amounts are not reimbursed. The

amount deducted shall reflect reasonable charges for child care, and,

in the case of child care necessary to permit employment, the amount

deducted shall not exceed the amount of income received from such

employment.

Common property. The non-dwelling structures and equipment, common

areas, community facilities, and in some cases certain component parts

of dwelling structures, which are contained in the development. It also

may include common property as defined in a cooperative form of

ownership, as determined by the IHA.

Comprehensive grant number. A grant number that is unique to each

work statement (under subpart I of this part) covering the improvements

to one or more existing Indian housing projects.

Comprehensive Plan. A plan prepared by an IHA, and approved by HUD,

under the Comprehensive Grant Program setting forth all of the physical

and management improvement needs of the IHA and its Indian housing

developments, indicating the relative urgency of needs, and which

includes the IHA's action plan, cost estimates, and required local

government and IHA certifications. The Comprehensive Plan may be

revised, as necessary, but must be revised at least every sixth year.

(See subpart I of this part.)

Construction contract. The contract for construction in the case of

the conventional method, or the contract of sale in the case of the

Turnkey method.

Cooperation agreement. An agreement between an IHA and a local

governing (taxing) body that assures exemption from real and personal

property taxes and provides for payments in lieu of taxes by the IHA;

and that provides for cooperation with respect to the development and

operation of low income housing owned by the IHA.

Cost effective. As used in subpart K of this part, an energy

conservation measure with a pay-back period of fifteen years or shorter

shall be considered cost effective.

Current budget year. The IHA fiscal year in which the IHA is

operating.

Defective lead-based paint surface. Paint on applicable surfaces

having a lead content of greater than or equal to 1 mg/cm2, that is

cracking, scaling, chipping, peeling or loose.

Defective paint surface. Paint on applicable surfaces that is

cracking, scaling, chipping, peeling or loose.

Demolition. The razing in whole, or in part, of one or more

permanent buildings of an Indian housing project.

Dependent. A member of the family household (excluding foster

children) other than the family head or spouse, who is under 18 years

of age or is a disabled person or handicapped person, or is a full-time

student.

Deprogramming. Removal from the IHA's inventory under the ACC,

pursuant to the IHA's formal request and HUD's approval, of a dwelling

unit no longer used for dwelling purposes or a nondwelling structure or

a unit used for nondwelling purposes that the IHA has determined will

no longer be used for IHA purposes.

Development. Any or all undertakings necessary for planning, land

acquisition, demolition, construction, or equipment, in connection with

a low income housing project.

Disabled person. A person who is under a disability as defined in

section 223 of the Social Security Act (42 U.S.C. 423), or who has a

developmental disability as defined in section 102(7) of the

Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.

6001(7)).

Displaced person. A person displaced by governmental action, or a

person whose dwelling has been extensively damaged or destroyed as a

result of a disaster declared or otherwise formally recognized under

Federal disaster relief laws.

Disposition. The conveyance or other transfer by the IHA, by sale

or other transaction, of any interest in the real estate of an Indian

housing project, excluding transfers of property described in

Sec. 950.921(b)(1)(i) through (vii).

Earned home payments account (EHPA). In the Turnkey III program

(subpart G of this part), this account is established and maintained

pursuant to Sec. 950.517 by the IHA based on a portion of the

homebuyer's required monthly payment. The EHPA should equal the IHA's

estimate of the monthly cost for routine maintenance of the home.

Elderly family. A family whose head or spouse (or sole member) is

an elderly, disabled, or handicapped person, as defined in this

section. It may include two or more elderly, disabled or handicapped

persons living together, or one or more of these persons living with

one or more live-in aides, as defined in this section.

Elderly person. A person who is at least 62 years of age.

Elevated blood lead level or EBL. Excessive absorption of lead,

that is, a confirmed concentration of lead in whole blood of 25 ug/dl

(micrograms of lead per deciliter of whole blood) or greater.

Emergency Modernization (CIAP). A type of modernization program for

a development that is limited to physical work items of an emergency

nature, posing an immediate threat to the health or safety of residents

or related to fire safety, which must be corrected within one year of

CIAP funding approval.

Emergency work. Physical work items of an emergency nature, posing

an immediate threat to the health or safety of residents, which must be

completed within one year of funding. Under the Comprehensive Grant

program, management improvements are not eligible as emergency work

and, therefore, must be covered by the Comprehensive Plan (including

the action plan), before the IHA may carry them out. See subpart I of

this part.

Energy audit. A process carried out in accordance with subpart K of

this part, which identifies and specifies the energy and cost savings

that are estimated to result from installing or accomplishing an energy

conservation measure.

Energy conservation measures (ECMs). Physical improvements or

modifications that, if undertaken for a building or facility, or its

equipment, are likely to reduce the cost of energy in an amount

sufficient to recover the installation costs in a period no longer than

the useful life of the measure. (See subpart K of this part.)

Family. Family includes but is not limited to:

(1) An elderly family or single person as defined in this part;

(2) The remaining member of a tenant family; and

(3) A displaced person.

Family project. Any project assisted under section 9 of the Act (42

U.S.C. 1437g) that is not an elderly project. For this purpose, an

elderly project is one that was designated for occupancy by the elderly

at its inception (and has retained that character) or, although not so

designated, for which the IHA gives preference in tenant selection

(with HUD approval) for all units in the project to elderly families. A

building within a mixed-use project that meets these qualifications

shall, for purposes of this definition, be excluded from any family

project, as shall zero bedroom units.

Federally recognized tribe. Any Indian tribe, band, nation or other

organized group or community, including any Alaska Native village or

regional corporation or village as defined in or established pursuant

to the Alaska Native Claims Settlement Act, which is recognized as

eligible for the special programs and services provided by the United

States to Indians because of their status as Indians.

FFY. Federal Fiscal Year (starting with October 1, and ending with

September 30, and designated by the calendar year in which it ends).

Force account labor. Labor directly employed by the IHA on either a

permanent or a temporary basis.

Formula. The formula prescribed by HUD to be used in the

Performance Funding System to estimate the cost of operating an average

unit in an IHA's inventory. (See subpart J of this part.)

Formula expense level. The per-unit per-month dollar amount of

expenses (excluding utilities and audits) computed under the formula,

in accordance with Sec. 950.710.

Full-time student. A person who is carrying a subject load that is

considered full-time for day students under the standards and practices

of the educational institution attended. An educational institution

includes a vocational school with a diploma or certificate program, as

well as an institution offering a college degree.

Handicapped assistance expenses. Reasonable expenses that are

anticipated, during the period for which annual income is computed, for

attendant care and auxiliary apparatus for a handicapped or disabled

family member and that are necessary to enable a family member

(including the handicapped or disabled member) to be employed, provided

that the expenses are neither paid to a member of the family nor

reimbursed by an outside source.

Handicapped person. A person having a physical or mental impairment

that:

(1) Is expected to be of long-continued and indefinite duration;

(2) Substantially impedes his or her ability to live independently;

and

(3) Is of such a nature that such ability could be improved by more

suitable housing conditions.

Hard costs. The physical improvement costs in development accounts

1450 through 1475 of the Low-Rent Housing Accounting Handbook, 7510.1,

as revised, which include: Account 1450 Site Improvements; Account 1460

Dwelling Structures; Account 1465.1 Dwelling Equipment--Nonexpendable;

Account 1470 Nondwelling Structures; and Account 1475 Nondwelling

Equipment.

Heating degree days (HDD). The annual arithmetic sum of the

positive differences (those under 65 degrees) of the average of the

lowest and highest daily outside temperature in degrees Fahrenheit,

subtracted from 65 degrees Fahrenheit.

High-risk. See 24 CFR 85.12 and Sec. 950.135.

Home. A dwelling unit covered by a homebuyer agreement.

Homebuyer. The member or members of a low income family who have

executed a homebuyer agreement with the IHA and who have not yet

achieved homeownership.

Homebuyer agreement. A Mutual Help and Occupancy Agreement or a

Turnkey III Homebuyer's Ownership Opportunity Agreement.

Homebuyer Association. In the Turnkey III program this means an

incorporated organization (as defined in Sec. 950.511) composed of all

of the families who are entitled to occupancy pursuant to a Homebuyer

Ownership Opportunity Agreement or who are homeowners.

Homeowner. A former homebuyer who has achieved ownership of his or

her home and acquired title to the home.

HUD. The Department of Housing and Urban Development, including the

Field Offices that have been delegated authority under the Act to

perform functions pertaining to this part for the area in which the IHA

is located.

HUD Field Office. The HUD Offices in Chicago, Oklahoma City,

Denver, Phoenix, Seattle, and Anchorage, which have been delegated

authority to administer programs under the United States Housing Act of

1937 for the area in which the IHA is located.

IHA homeownership financing. IHA financing for purchase of a home

by an eligible homebuyer who gives the IHA a promissory note and

mortgage for the balance of the purchase price.

IHS. The Indian Health Service in the Department of Health and

Human Services.

Indian. Any person recognized as being an Indian or Alaska Native

by an Indian Tribe, the Federal Government, or any State.

Indian area. The area within which an Indian Housing Authority is

authorized to provide low income housing.

Indian Housing Authority (IHA). An entity that is authorized to

engage in or assist in the development or operation of low income

housing for Indians that is established either:

(1) By exercise of the power of self-government of an Indian Tribe

independent of State law; or

(2) By operation of State law providing specifically for housing

authorities for Indians, including regional housing authorities in the

State of Alaska.

Indian Tribe. Any Tribe, band, pueblo, group, community, or nation

of Indians or Alaska Natives.

Interdepartmental agreement. The agreement among HUD, the

Department of Health and Human Services, the Department of Interior,

and other appropriate agencies, concerning assistance to projects

developed and operated under the Act.

Latent defect. A design or construction deficiency that could not

reasonably have been foreseen by the IHA or the Office of Indian

Programs.

Lead-based paint. A paint surface, whether or not defective,

identified as having a lead content greater than or equal to 1.0 mg/

cm2, or .5 percent by weight.

Live-in aide. A person who resides with an elderly, disabled, or

handicapped person or persons and who:

(1) Is determined by the IHA to be essential to the care and well-

being of the person(s);

(2) Is not obligated for support of the person(s); and

(3) Would not be living in the unit except to provide necessary

supportive services. (See definition of annual income for treatment of

a live-in aide's income.)

Local inflation factor. The weighted average percentage increase in

local government wages and salaries for the area in which the IHA is

located and non-wage expenses based upon the implicit price deflator

for State and local government purchases of goods and services. This

weighted average percentage will be supplied by HUD. HUD anticipates

that it will update the local inflation factor each year.

Low-income family. A family whose annual income does not exceed 80

percent of the median income for the area, as determined by HUD with

adjustments for smaller and larger families. HUD may establish income

limits higher or lower than 80 percent of the median income for an

Indian area on the basis of its finding that such variations are

necessary because of the prevailing levels of construction costs or

unusually high or lower family incomes.

Management capability. (1) An IHA has management capability if it

is:

(i) Not designated as High Risk under Sec. 950.135; or

(ii) Designated as High Risk, but has a reasonable prospect of

acquiring management capability which may include modernization-funded

management improvements.

(2) An IHA may be considered for funding of non-emergency physical

improvements where it is making reasonable progress toward meeting the

goals established in its management improvement plan under

Sec. 950.135.

Management improvement plan. A document developed by the IHA in

accordance with Sec. 950.135 which specifies the actions to be taken,

including timetables, to correct deficiencies identified as a result of

a management assessment.

Mastermeter system. A utility distribution system in which an IHA

is supplied utility service by a utility supplier through a meter or

meters and the IHA then distributes the utility to its tenants.

Medical expenses. Those medical expenses, including medical

insurance premiums, that are anticipated during the period for which

annual income is computed, and that are not covered by insurance.

Meter loop. A device provided to accommodate future installation of

a utility meter. (See subpart K of this part).

Modernization capability. An IHA has modernization capability for

CIAP if it is capable of effectively carrying out the proposed

modernization improvements. Where an IHA does not have a funded

modernization program in progress, HUD will determine whether the IHA

has a reasonable prospect of acquiring modernization capability through

hiring staff or contracting for assistance. (See Sec. 950.135.)

Modernization funds. Funds derived from an allocation of budget

authority for the purpose of funding physical and management

improvements.

Modernization program. An IHA's program for carrying out

modernization, as set forth in the approved CIAP budget for

modernization funds. (See subpart I (CIAP) of this part.)

Modernization project. The improvement of one or more existing

Indian housing developments under a new number designated for that

modernization program (CIAP). For each modernization project, HUD and

the IHA shall enter into an ACC amendment, requiring low-income use of

the housing for not less than 20 years from the date of the ACC

amendment (subject to sale of homeownership units in accordance with

the terms of the ACC).

Monthly adjusted income. One twelfth of adjusted income.

Monthly Equity Payments Account (MEPA). A homebuyer account in the

Mutual Help Homeownership Opportunity program credited with the amount

by which each required monthly payment exceeds the administration

charge.

Monthly income. One twelfth of annual income.

MH. Mutual Help.

MH Construction Contract. A construction contract for an MH

project, which shall be on a form prescribed by HUD.

MH Contribution. Land, labor, cash, materials, or equipment--or a

combination of these--contributed toward the development cost of a

project in accordance with a homebuyer's MHO Agreement, credit for

which is to be used toward purchase of a home.

MH Program. The MH Homeownership Opportunity Program.

MHO Agreement. A Mutual Help and Occupancy Agreement between an IHA

and a homebuyer.

Near elderly family. A family whose head or spouse (or sole member)

is at least 50 years of age but below the age of 62 years.

Net family assets. Net cash value after deducting reasonable costs

that would be incurred in disposing of real property, savings, stocks,

bonds, and other forms of capital investment, excluding interests in

Indian trust land and excluding equity accounts in HUD homeownership

programs. The value of necessary items of personal property such as

furniture and automobiles are excluded, and, in the case of a family in

which any member is actively engaged in a business or farming

operation, the assets that are a part of the business or farming

operation are excluded. In cases where a trust fund, such as individual

Indian monies held by the BIA, has been established and the trust is

not revocable by, or under the control of, any member of the family or

household, the value of the trust fund will not be considered an asset

so long as the fund continues to be held in trust. In determining net

family assets, IHAs shall include the value of any business or family

assets disposed of by an applicant or tenant for less than fair market

value (including a disposition in trust, but not in a foreclosure or

bankruptcy sale) during the two years preceding the date of application

for the program or reexamination, as applicable, in excess of the

consideration received therefor. In the case of a disposition as part

of a separation or divorce settlement, the disposition will not be

considered to be for less than fair market value if the applicant or

tenant receives important consideration not measurable in dollar terms.

Nonroutine maintenance. (1) For purposes of the Turnkey III Program

(Nonroutine Maintenance Reserve), nonroutine maintenance refers to

infrequent and costly items of maintenance and replacement, including

dwelling equipment such as a range or refrigerator, or major components

such as heating or plumbing systems or a roof. Specifically excluded

are maintenance expenses attributable to homebuyer negligence or to

defective materials or workmanship.

(2) For purposes of the CIAP and Comprehensive Grant Modernization

Programs under subpart I of this part and the applicability of wage

rates, nonroutine maintenance refers to work items that ordinarily

would be performed on a regular basis in the course of upkeep of a

property, but have become substantial in scope because they have been

put off, and that involve expenditures that would otherwise materially

distort the level trend of maintenance expenses. Replacement of

equipment and materials rendered unsatisfactory because of normal wear

and tear by items of substantially the same kind does qualify, but

reconstruction, substantial improvement in the quality or kind of

original equipment and materials, or remodeling that alters the nature

or type of housing units does not qualify.

NRMR. The nonroutine maintenance reserve account in the Turnkey III

Program established and maintained in accordance with Sec. 950.519.

Operating budget. The IHA's operating budget (HUD form 52564) and

all related documents, required by HUD to be submitted pursuant to the

ACC.

Operating subsidy. Annual contributions for IHA operations made by

HUD under the authority of section 9 of the Act. (See subpart J of this

part with respect to rental projects. See also Sec. 950.434 (Mutual

Help Operating Subsidy) and Sec. 950.523 (Turnkey III Operating

Subsidy).)

Other income. Income to the IHA other than dwelling rental income

and income from investments, except that, for purposes of determining

operating subsidy eligibility, the following items are excluded: Grants

and gifts for operations, other than for utility expenses, received

from Federal, State, and local governments, individuals or private

organizations; amounts charged to tenants for repairs for which the IHA

incurs an offsetting expense; and legal fees in connection with

eviction proceedings, when those fees are lawfully charged to tenants.

Other Modernization (modernization other than emergency). A type of

modernization program under the Comprehensive Improvement Assistance

Program (CIAP) for a development that includes one or more physical

work items, where HUD determines that the physical improvements are

necessary and sufficient to extend substantially the useful life of the

development, and/or one or more management work items (including

planning costs), and/or testing, professional risk assessments, interim

containment, and abatement of lead-based paint.

Partnership process. A specific and ongoing process that is

designed to ensure that residents, resident groups, and the IHA work in

a cooperative and collaborative manner to develop, implement and

monitor the CIAP or Comprehensive Grant Program. At a minimum, an IHA

shall ensure that the partnership process incorporates full resident

participation in each of the required program components.

Pay-back period. The number of years required to accumulate net

savings to equal the cost of an energy conservation measure.

Performance funding system (PFS). The standards, policies and

procedures established by HUD for determining the amount of operating

subsidy an IHA is eligible to receive for its owned rental projects,

based on the costs of operating a comparable well-managed project.

Pilot. Payment in lieu of taxes. Includes all payments made by an

IHA to the local governing body (or other taxing jurisdiction) for the

provision of certain municipal services, including that portion of

payments in lieu of taxes which is to be applied as a reimbursement of

payments of offsite utilities. The amount charged is determined by the

cooperation agreement which is generally defined as 10 percent of

shelter rent. Shelter rent is defined as dwelling rentals less total

utility expenses.

Program reservation. A written notification by HUD to an IHA, which

is not a legal obligation, but which expresses HUD's determination,

subject to fulfillment by an IHA of all legal and administrative

requirements within a stated time, that HUD will enter into a new or

amended ACC covering the stated number of housing units, or such other

number as is consistent with funding reserved by HUD for the project.

Project. Housing developed, acquired, or assisted by an IHA under

the Act, and the improvement of this housing.

Project for elderly families. A rental project or portion of a

rental project assisted under the U.S. Housing Act of 1937 that was

designated for occupancy by the elderly at its inception (and that has

retained that character) or, although not so designated, for which the

IHA gives preference in tenant selection (with HUD approval) for all

units in the project, or for a portion of the units in the project, to

elderly families.

Project units. All dwelling units of an IHA's projects.

Projected operating income level. The per unit per month dollar

amount of dwelling rental income plus nondwelling income, computed as

provided in Sec. 950.725.

Reasonable cost. Total unfunded hard cost needs for a development

that do not exceed 90 percent of the computed total development cost

limit for a new development with the same structure type and number and

size of units in the market area.

Requested budget year. The budget year (fiscal year) of an IHA

following the current budget year.

Resident groups. Democratically elected resident groups such as

IHA-wide resident groups, area-wide resident groups, single development

resident groups, or RMCs.

Retail service. Purchase of utility service by IHA tenants directly

from the utility supplier.

Rolling base period. The 36-month period that ends 12 months before

the beginning of the IHA requested budget year, which is used to

determine the allowable utilities consumption level used to compute the

utilities expense level.

Single person. A person who lives alone or intends to live alone,

and who does not qualify as:

(1) An elderly family;

(2) A displaced person (as defined in this section); or

(3) The remaining member of a tenant family.

Soft costs. The non-physical improvement costs, which exclude any

costs in development accounts 1450 through 1475.

State. Any of the several States of the United States of America,

the District of Columbia, the Commonwealth of Puerto Rico, the

territories and possessions of the United States, the Trust Territory

of the Pacific Islands, and Indian Tribes.

Subsequent homebuyer. Any homebuyer other than the homebuyer who

first occupies a home pursuant to an MHO agreement.

Substantial rehabilitation. A modernization program for a project

that provides for all physical and management improvements needed to

meet the modernization and energy conservation standards and to ensure

long-term physical and social viability.

Successor homebuyer. A person eligible to become a homebuyer who

has been designated by a current homebuyer to succeed to an interest

under a homeownership agreement in the event of the current homebuyer's

death or mental incapacity.

Surcharge. The amount charged by the IHA to a tenant, in addition

to the Tenant Rent, for consumption of utilities in excess of the

allowance for IHA-furnished utilities or for estimated consumption

attributable to tenant-owned major appliances or to optional functions

of IHA-furnished equipment. Surcharges calculated pursuant to subpart

K, based on estimated consumption where checkmeters have not been

installed, are referred to as ``scheduled surcharges.''

Tenant-purchased utilities. Utilities purchased by the tenant

directly from a utility supplier.

Tenant rent. The amount payable monthly by the family as rent to

the IHA. Where all utilities (except telephone) and other essential

housing services are supplied by the IHA, tenant rent equals total

tenant payment. Where some or all utilities (except telephone) and

other essential housing services are not supplied by the IHA and the

cost thereof is not included in the amount paid as rent, tenant rent

equals total tenant payment less the utility allowance.

Total development cost. The sum of all HUD-approved costs for a

project including all undertakings necessary for administration,

planning, site acquisition, demolition, construction or equipment and

financing (including the payment of carrying charges), and for

otherwise carrying out the development of the project. The maximum

total development cost excludes offsite water and sewer facilities

development costs; costs normally paid for by other entities, but

included in the development cost budget for the project for contracting

or accounting convenience; and any donations received from public or

private sources.

Total tenant payment. The monthly amount calculated under subpart D

of this part. Total tenant payment does not include any surcharge for

excess utility consumption or other miscellaneous charges (see subpart

K of this part).

Unit approved for deprogramming. (1) A dwelling unit for which HUD

has approved the IHA's formal request to remove the dwelling unit from

the IHA's inventory and the Annual Contributions Contract but for which

removal, i.e. deprogramming, has not yet been completed; or

(2) A nondwelling structure or a dwelling unit used for nondwelling

purposes which the IHA has determined will no longer be used for IHA

purposes and which HUD has approved for removal from the IHA's

inventory and Annual Contributions Contract.

Unit months available. Project units multiplied by the number of

months the project units are expected to be available for occupancy

during a given IHA fiscal year. Except as provided in the following

sentence, for purposes of this part, a unit is considered available for

occupancy from the date on which the end of the initial operating

period for the project is established until the time it is approved by

HUD for deprogramming and is vacated or approved for nondwelling use.

On or after July 1, 1991, a unit is not considered available for

occupancy in any IHA Requested Budget Year if the unit is located in a

vacant building in a project that HUD has determined is nonviable.

Utilities. For purposes of determining utility allowances,

utilities include electricity, gas, heating fuel, water, sewerage

service, septic tank pumping/maintenance, sewer system hookup charges

(after development), and trash and garbage collection. Telephone

service is not included as a utility. For purposes of IHA accounting,

PFS and non-PFS, trash and garbage collection and maintenance and

repair of any systems are considered maintenance expenses and not

utility expenses.

Utilities expense level. The per-unit per-month dollar amount of

utilities expense used in calculation of operating subsidy, as provided

in Sec. 950.715.

Utility allowance. An allowance for IHA-furnished utilities

represents the maximum consumption units (e.g., kilowatt hours of

electricity), that may be used by a dwelling unit without a surcharge

against the tenant for excess consumption. An allowance for tenant-

purchased utilities is a fixed dollar amount that is deducted from the

total tenant payment otherwise chargeable to a tenant who has retail

service, whether the charges are more or less than the amounts of the

allowance. (See Secs. 950.865 and 950.870.)

Utility reimbursement. The amount, if any, by which the utility

allowance for tenant-purchased utilities for the unit, if applicable,

exceeds the family's total tenant payment.

Very low-income family. A low-income family whose annual income

does not exceed 50 percent of the median income for the area, as

determined by HUD, with adjustments for smaller and larger families.

HUD may establish income limits higher or lower than 50 percent of the

median income for an Indian area on the basis of its finding that such

variations are necessary because of unusually high or low family

incomes.

Welfare assistance. Welfare or other payments to families or

individuals, based on need, that are made under programs funded,

separately or jointly, by Federal, State or local governments.

Work item. Any separately identifiable unit of work constituting a

part of a modernization program.

Sec. 950.110 Assistance from Indian Health Service and Bureau of

Indian Affairs.

Because HUD assistance under this part is not limited to IHAs of

federally recognized Tribes, provisions in this part relating to

assistance from BIA or IHS, or to required approvals, actions or

determinations by these agencies in connection with such assistance,

are applicable only to projects undertaken by IHAs of federally

recognized Tribes or by regional housing authorities created by Alaska

state law. These projects shall be developed promptly and operated in

accordance with the provisions of this part and the Interdepartmental

Agreement.

Sec. 950.115 Applicability of civil rights requirements.

(a) Indian Civil Rights Act. (1) The Indian Civil Rights Act (title

II of the Civil Rights Act of 1968, 25 U.S.C. 1301-1303) provides,

among other things, that ``no Indian tribe in exercising powers of

self-government shall . . . deny to any person within its jurisdiction

the equal protection of its laws or deprive any person of liberty or

property without due process of law.'' The Indian Civil Rights Act

(ICRA) applies to any tribe, band, or other group of Indians subject to

the jurisdiction of the United States in the exercise of recognized

powers of self-government. The ICRA is applicable in all cases where an

IHA has been established by exercise of Tribal powers of self-

government.

(2) In the case of IHAs established pursuant to State law,

determinations by HUD of the applicability of the ICRA on a case-by-

case basis may consider such factors as the existence of recognized

powers of self-government; the scope and jurisdiction of such powers;

and the applicability of such powers to the area of operation of a

particular IHA. Generally, determinations by HUD of the existence of

recognized powers of self-government and the jurisdiction of such

powers will be made in consultation with the Department of Interior-

Bureau of Indian Affairs, and may consider applicable legislation,

treaties and judicial decisions. The area of operation of an IHA may be

determined by the jurisdiction of the governing body creating the IHA,

any limitations within the enabling legislation, and judicial

decisions.

(3) Projects of IHAs subject to the ICRA shall be developed and

operated in compliance with its provisions and all HUD regulations and

handbooks thereunder.

(b) Nonapplicability of Title VI, the Fair Housing Act, and title

II of the Americans with Disabilities Act. Title VI of the Civil Rights

Act of 1964 (42 U.S.C. 2000d), which prohibits discrimination on the

basis of race, color or national origin in federally assisted programs,

the Fair Housing Act (42 U.S.C. 3601-3619), which prohibits

discrimination based on race, color, religion, sex or national origin

in the sale or rental of housing, and title II of the Americans with

Disabilities Act (42 U.S.C. 12131) do not apply to IHAs established by

exercise of a Tribe's powers of self-government. HUD regulations

implementing Title VI and the Fair Housing Act (24 CFR parts 1 and 100)

and 49 CFR part 24 which implements title II of the Americans with

Disabilities Act shall not be applicable to development or operation of

projects by such IHAs. Any determination by HUD of the applicability of

Title VI, the Fair Housing Act and title II of the Americans with

Disabilities Act on a case-by-case basis shall consider the

applicability of the Indian Civil Rights Act under paragraph (a) of

this section. Actions taken by an IHA to implement the statutory

admission restriction in favor of Indian families in the MH program, as

set forth in Sec. 950.416, shall not be considered a violation of any

provision of either Title VI, the Fair Housing Act, or title II of the

Americans with Disabilities Act.

(c) Indian Housing Act of 1988--Mutual Help program admissions. For

provisions generally limiting admission to the Mutual Help

Homeownership Opportunity program to Indians and requiring findings of

need for admission of non-Indians, see Sec. 950.416.

(d) Disability. (1) Under section 504 of the Rehabilitation Act of

1973 (29 U.S.C. 794), as amended, HUD is required to assure that no

otherwise-qualified disabled person is excluded from participation,

denied benefits, or discriminated against under any program or activity

receiving Federal financial assistance, solely by reason of his or her

disability. IHAs must comply with implementing instructions in 24 CFR

part 8.

(2) The IHA shall comply with the Architectural Barriers Act of

1968 (42 U.S.C. 4151-4157), and HUD implementing regulations (24 CFR

part 40).

(e) Minority Business Enterprise Development and Women's Business

Enterprise Policy. Executive Orders 12432 (3 CFR, 1983 Comp., p. 198)

and 12138 (3 CFR, 1979 Comp. p. 39), respectively, apply to Indian

Housing Authorities.

Sec. 950.117 Displacement, relocation, and acquisition.

(a) Minimizing displacement. Consistent with the other goals and

objectives of this part, IHAs shall assure that they have taken all

reasonable steps to minimize the displacement of persons (families,

individuals, businesses, nonprofit organizations, and farms) as a

result of a project assisted under this part.

(b) Temporary relocation. Residents who will not be required to

move permanently, but who must relocate temporarily (e.g., to permit

rehabilitation), shall be provided:

(1) Reimbursement for all reasonable out-of-pocket expenses

incurred in connection with the temporary relocation, including the

cost of moving to and from the temporary housing and any increase in

monthly rent/utility costs.

(2) Appropriate advisory services, including reasonable advance

written notice of:

(i) The date and approximate duration of the temporary relocation;

(ii) The location of the suitable, decent, safe and sanitary

housing to be made available for the temporary period;

(iii) The terms and conditions under which the resident may lease

and occupy a suitable, decent, safe, and sanitary dwelling in the

development following its completion; and

(iv) The provisions of paragraph (b)(1) of this section.

(c) Relocation assistance for displaced persons. (1) A ``displaced

person'' (defined in paragraph (g) of this section) must be provided

relocation assistance at the levels described in, and in accordance

with the requirements of, the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970, as amended (URA) (42 U.S.C.

4601-4655) and implementing regulations at 49 CFR part 24.

(2) A comparable Indian housing unit, project-based Section 8

housing or a privately-owned dwelling made affordable by a Section 8

Rental Certificate or Rental Voucher, may qualify as a comparable

replacement dwelling for a person displaced from an Indian housing

unit.

(d) Real property acquisition requirements. The acquisition of real

property for a development is subject to the URA and the requirements

described in 49 CFR part 24, subpart B, whether the acquiring entity is

organized under State law or Tribal law.

(e) Appeals. A person who disagrees with the IHA's determination

concerning whether the person qualifies as a ``displaced person,'' or

the amount of relocation assistance for which the person is eligible,

may file a written appeal of that determination with the IHA. A lower-

income person who is dissatisfied with the IHA's determination on his

or her appeal may submit a written request for review of that

determination to the HUD Field Office.

(f) Responsibility of IHA. (1) The IHA shall certify (i.e., provide

assurance of compliance, as required by 49 CFR part 24) that it will

comply with the URA, the regulations at 49 CFR part 24, and the

requirements of this section, and shall ensure such compliance

notwithstanding any third party's contractual obligation to the IHA to

comply with those provisions.

(2) The cost of required relocation assistance is an eligible

project cost in the same manner and to the same extent as other project

costs. However such assistance also may be paid from funds available

from other sources.

(3) The IHA shall maintain records in sufficient detail to

demonstrate compliance with the requirements of this section.

(g) Definition of displaced person. (1) For purposes of this

section, the term ``displaced person'' means a person (family,

individual, business, nonprofit organization, or farm) that moves from

real property, or moves personal property from real property,

permanently, as a direct result of acquisition, rehabilitation,

demolition, or conversion of a unit to homeownership (Mutual Help

Homeownership Opportunity (MH) Program) for a project assisted under

this part or as a direct result of disposition in accordance with

subpart M of this part. This includes any permanent, involuntary move

for an assisted project including any permanent move from the

development that is made:

(i) After notice to the person by the IHA or property owner to move

permanently from the property, if the move occurs on or after:

(A) For the comprehensive improvement assistance program (CIAP) and

the comprehensive grant program (CGP) under subpart I of this part, 45

calendar days from before:

(1) The IHA issues the invitation for bids for the project, or

(2) The start of force account work, whichever is applicable; or

(B) For the disposition or demolition of Indian housing under

subpart M of this part, the date of HUD approval of the IHA's proposal;

or

(C) For other projects subject to this section, the date HUD

approves the site for the project; or, if HUD site approval is not

required, the date the IHA approves the site for the project;

(ii) Before the date described in paragraph (g)(1)(i) of this

section, if the IHA or HUD determines that the displacement resulted

directly from acquisition, rehabilitation, demolition, or conversion

for the assisted project; or

(iii) By a resident of a dwelling unit, if any one of the following

three situations occurs:

(A) The resident moves after the ``initiation of negotiations'' and

the move occurs before the resident is provided written notice offering

him or her the opportunity to lease and occupy a suitable, decent,

safe, and sanitary dwelling in the same development, under reasonable

terms and conditions, upon its completion. Such reasonable terms and

conditions include a monthly rent and estimated average monthly utility

costs that do not exceed the amount determined in accordance with

Sec. 950.325; or

(B) The resident is required to relocate temporarily, does not

return to the development, and either:

(1) The resident is not offered payment for all reasonable out-of-

pocket expenses incurred in connection with the temporary relocation,

or

(2) Other conditions of the temporary relocation are not

reasonable; or

(C) The resident is required to move to another dwelling unit in

the same development but is not offered reimbursement for all

reasonable out-of-pocket expenses incurred in connection with the move,

or other conditions of the move are not reasonable.

(2) Notwithstanding the provisions of paragraph (g)(1) of this

section, a person does not qualify as a ``displaced person'' (and is

not eligible for relocation assistance under the URA or this section),

if:

(i) The person has been evicted for serious or repeated violation

of the terms and conditions of the lease or occupancy agreement,

violation of applicable Federal, State, tribal, or local law, or other

good cause, and HUD determines that the eviction was not undertaken for

the purpose of evading the obligation to provide relocation assistance;

(ii) The person moved into the property after the date described in

paragraph (g)(1)(i) of this section and, before commencing occupancy,

was provided written notice of the project, its possible impact on the

person (e.g., the person may be displaced, temporarily relocated, or

suffer a rent increase) and the fact that he or she will not qualify as

a ``displaced person'' (or for assistance under this section) as a

result of the project:

(iii) The person is ineligible under 49 CFR 24.2(g)(2); or

(iv) HUD determines that the person was not displaced as a direct

result of acquisition, rehabilitation, demolition, or conversion for

the project.

(3) The IHA may, at any time, ask HUD to determine whether a

displacement is or would be covered by this section.

(h) Definition of initiation of negotiations. For purposes of

determining the formula for computing the replacement housing

assistance to be provided to a resident, the term ``initiation of

negotiations'' means the following action:

(1) For the comprehensive improvement assistance program (CIAP) or

comprehensive grant program (CGP) under subpart I of this part, 45

calendar days before:

(i) The IHA's issuance of the invitation for bids for the project;

or

(ii) The start of force account work, whichever is applicable;

(2) For an IHA purchase through an arm's-length transaction as

described in 49 CFR 24.101(a)(1), the seller's acceptance of the IHA's

written offer to purchase the property;

(3) For an IHA purchase that does not qualify as an arm's-length

transaction, the delivery of the initial written purchase offer from

the IHA to the Owner of the property. However, if the IHA issues a

notice of intent to acquire the property, and a person moves after that

notice, but before the initial written purchase offer, the ``initiation

of negotiations'' is the actual move of the person from the property;

(4) For disposition or demolition of Indian housing under subpart M

of this part, HUD approval of the IHA's proposal; or

(5) For other programs under this part 950, the notice to the

occupant that he or she must move permanently, or, if there is no

notice, the person's actual move from the property.

(Approved by the Office of Management and Budget under control

number 2506-0121)

Sec. 950.120 Compliance with other Federal requirements.

(a) Environmental clearance. Before approving a proposed

development program or modernization project, HUD will comply with the

requirements of 24 CFR part 50.

(b) Flood insurance protection. HUD will not approve financial

assistance for acquisition, construction, reconstruction, repair, or

improvement of a building located in an area that has been identified

by the Federal Emergency Management Agency (FEMA) as having special

flood hazards, unless the following conditions are met:

(1) Flood insurance on the building is obtained in compliance with

section 102(a) of the Flood Disaster Protection Act of 1973 (42 U.S.C.

4012a(a)); and

(2) The community in which the area is situated is participating in

the National Flood Insurance Program in accord with section 202(a) of

the Act (42 U.S.C. 4106(a)), or less than a year has passed since FEMA

notification regarding such flood hazards. For this purpose, the

``community'' is the jurisdiction, such as an Indian Tribe or

authorized Tribal organization, an Alaska native village or authorized

native organization, or a municipality or county, that has authority to

adopt and enforce flood plain management regulations for the area.

(c) Wage rates for laborers and mechanics. (1) With respect to

construction work on a project, including a modernization project

(except for nonroutine maintenance work, as described in paragraph (2)

of the definition of ``nonroutine maintenance'' in Sec. 950.102), the

IHA and its contractors shall pay not less than the wages prevailing in

the locality, as predetermined by the Secretary of Labor pursuant to

the Davis-Bacon Act (40 U.S.C. 276a through 276a-5), to all laborers

and mechanics who are employed by an IHA or its contractors for work or

contracts over $2,000.

(2) With respect to all maintenance work on a project, including

nonroutine maintenance work (as described in paragraph (2) of the

definition of ``nonroutine maintenance'' in Sec. 950.102) on a

modernization project, the IHA and its contractors shall pay not less

than the wages prevailing in the locality, as determined or adopted

(after a determination under State, Tribal or local law) by HUD

pursuant to section 12 of the United States Housing Act of 1937 (42

U.S.C. 1437j), to all laborers and mechanics who are employed by an IHA

or its contractors.

(3) Prevailing wage rates determined under State or Tribal law are

inapplicable under the circumstances set out in Sec. 950.172(b).

(d) Professional and technical wage rates. All architects,

technical engineers, draftsmen and technicians employed in the

development of a project shall be paid not less than the wages

prevailing in the locality, as determined or adopted (after a

determination under applicable State, Tribal, or local law) by HUD.

(e) Access to records: audits. (1) HUD and the Comptroller General

of the United States shall have access to all books, documents, papers,

and other records that are pertinent to the activities carried out

under this part, in order to make audit examinations, excerpts, and

transcripts, in accordance with 24 CFR 85.42.

(2) IHAs that receive financial assistance under this part must

comply with the audit requirements of 24 CFR part 44. If an IHA has

failed to submit an acceptable audit on a timely basis in accordance

with that part, HUD may arrange for, and pay the costs of, the audit.

In such circumstances, HUD may withhold, from assistance otherwise

payable to the IHA under this part, amounts sufficient to pay for the

reasonable costs of conducting an acceptable audit, including, when

appropriate, the reasonable costs of accounting services necessary to

place the IHA's books and records into auditable condition. The costs

to place the IHA's books and records into auditable condition do not

generate additional subsidy eligibility under this part.

(f) Uniform administrative requirements. The Uniform Administrative

Requirements for Grants and Cooperative Agreements to States, Local,

and Federally Recognized Indian Tribal Governments, as set forth in 24

CFR part 85, are applicable to grants under this part, except as

specified in this part. However, the provisions of 24 CFR 85.36 have

been incorporated in the procurement subpart (subpart B) of this part.

(g) Lead based paint poisoning prevention. See 24 CFR part 35 and

subpart H of this part.

(h) Coastal barriers. In accordance with the Coastal Barriers

Resources Act (16 U.S.C. 3501), no financial assistance under this part

may be made available within the Coastal Barrier Resources System.

(i) Economic opportunities for low and very low-income persons.

IHAs shall comply with section 3 of the Housing and Urban Development

Act of 1968 (12 U.S.C. 1701u) and the regulations in part 135, as

provided in part 135, to the maximum extent consistent with, but not in

derogation of, compliance with section 7(b) of the Indian Self-

Determination and Education Assistance Act (25 U.S.C. 450e(b)). (See

also 24 CFR 950.170(c).)

Sec. 950.125 Establishment of IHAs pursuant to State law.

An IHA may be established pursuant to a State law that provides for

the establishment of IHAs by State or federally recognized Indian

tribes with all necessary legal powers to carry out low-income housing

projects for Indians.

Sec. 950.126 Establishment of IHAs by Tribal ordinance.

(a) Legal capacity of Tribe to establish IHA. Where an Indian Tribe

has governmental police power to promote the general welfare, including

the power to create a housing authority, an IHA may be established by

Tribal ordinance enacted by the governing body of the Tribe.

(b) Form of ordinance. The form of Tribal ordinance shall be

determined by the Tribe and reviewed by the ONAP Administrator. The IHA

must also demonstrate that it has the legal authority to develop, own,

and operate a public housing project under the Act. A sample format

will be provided by HUD.

(c) Approval or review of ordinance. HUD shall not enter into an

undertaking for assistance to an IHA formed by Tribal ordinance unless

such ordinance has been submitted to HUD, accompanied by evidence that

the Tribe's enactment of the ordinance either has been approved by the

Department of the Interior or has been reviewed and not objected to by

that Department.

(d) Submission to HUD of documents establishing IHA. The Tribal

ordinance, evidence of Department of the Interior approval or review,

and the following documentation relating to the initial organization of

the IHA shall be submitted to HUD prior to receiving financial

assistance. This includes:

(1) Certificate of appointment of Commissioners;

(2) Commissioner's oath of office;

(3) Notice of organization;

(4) Consent to meeting;

(5) Minutes of meeting;

(6) Resolutions establishing the IHA, adopting the by-laws,

adopting the seal, designating a regular place of meeting, and

designating officers;

(7) By-Laws;

(8) Certificate of Secretary as to authenticity of documents; and

(9) General certificate of Housing Authority.

Sec. 950.130 IHA Commissioners who are tenants or homebuyers.

(a) Tenant or homebuyer commissioners. No person shall be barred

from serving on an IHA's Board of Commissioners because he or she is a

tenant or homebuyer in a housing project of the IHA. A Commissioner who

is a tenant or homebuyer shall be entitled to participate fully in all

meetings concerning matters that affect all of the tenants or

homebuyers, even though such matters affect him or her as well.

However, no such Commissioner shall be entitled or permitted to

participate in or be present at any meeting (except in his or her

capacity as a tenant or homebuyer), or be counted or treated as a

member of the Board, concerning any matter involving his or her

individual rights, obligations, or status as a tenant or homebuyer.

(b) Commissioner as IHA employee. A member of the IHA's Board of

Commissioners shall not be eligible for employment by the IHA, except

under extremely unusual circumstances where it is documented that no

one except the commissioner is qualified for the position and where the

HUD Field Office approves in advance of the hiring.

Sec. 950.135 Administrative capability.

(a) HUD determination. At least annually, HUD shall carry out such

reviews of the performance of each IHA, including remote reviews, on-

site limited and full reviews, audits, surveys, and a formal annual

review or risk analysis assessment, as may be necessary or appropriate

to make the determinations required by this section, taking into

consideration all available evidence. HUD will evaluate an IHA's

compliance in the areas of development, modernization, and operations,

including such functions as administration, financial management,

occupancy, and maintenance.

(b) Obligation to maintain. (1) An IHA must maintain administrative

capability at all times throughout the term of the ACC. In order to be

considered administratively capable, an IHA must administer the Indian

housing program in accordance with applicable statutory requirements,

HUD regulations, contracts, HUD handbooks and other program

requirements with no serious deficiencies. If any of the following

conditions exist, it shall be considered a serious deficiency:

(i) The IHA is not financially stable, based on the most recent

Administrative Capability Assessment, annual audit, technical

assistance visit, or other reliable information;

(ii) An audit, conducted in accordance with 24 CFR part 44 and with

Sec. 950.120, or HUD reviews (including monitoring findings) reveal

deficiencies that HUD reasonably believes require corrective action

and/or that corrective actions are not taken in accordance with

established timeframes;

(iii) The IHA has management systems that do not meet the standards

as set forth in 24 CFR part 85, and the lack of such systems may result

in mismanagement or misuse of Federal funds;

(iv) The IHA has not conformed to the terms and conditions of

previous awards, including for new construction, the Comprehensive

Improvement Assistance Program or the use of Operating Subsidies;

(v) The IHA lacks properly trained and competent personnel at key

management positions of the IHA; or

(vi) The IHA is in violation of the terms of applicable statutes,

regulations, Annual Contributions Contracts or handbooks.

(2) If an IHA has serious deficiencies, HUD shall take any or all

of the following actions:

(i) Issue a notice of deficiency;

(ii) Issue a corrective action order; or

(iii) Classify the IHA as ``high risk'' (see 24 CFR part 85).

(c) Notice of deficiency. Based on HUD reviews of IHA performance

and findings of any of the deficiencies in paragraph (b)(1) of this

section, HUD may issue to the IHA a notice of deficiency, stating the

specific program requirements that the IHA has violated and requesting

the IHA to take appropriate action. The notification shall be in

writing and contain the following:

(1) The deficiencies, i.e., the IHA actions and the statutory,

regulatory, handbook or other requirements that have been violated;

(2) Recommended actions that may be taken by the IHA and a

timeframe for completion;

(3) The documentation necessary for evidence that all actions have

been completed.

(d) Corrective action order. (1) Based on HUD reviews of IHA

performance and findings of any of the deficiencies described in

paragraph (b)(1) of this section, HUD may issue to the IHA a corrective

action order. An order may be issued, whether or not a notice of

deficiency previously has been issued with regard to the specific

deficiency on which the corrective action order is based. HUD may order

corrective action at any time by notifying the IHA of the specific

program requirements that the IHA has violated, and by specifying the

corrective actions that must be taken. HUD shall design corrective

action to prevent a continuation of the deficiency, mitigate any

adverse effects of the deficiency to the extent possible, and prevent a

recurrence of the same or similar deficiencies.

(2) Before ordering corrective action, HUD will notify the IHA and

give it an opportunity to consult with HUD regarding the proposed

action.

(3) Any corrective action ordered by HUD shall become a condition

of the ACC grant agreement.

(4) The order shall be in writing and shall contain the following:

(i) The deficiencies, i.e., the IHA actions and the statutory,

regulatory, handbook or other requirements that have been violated;

(ii) The corrective action(s) that must be taken by the IHA and the

time allowed for completing the corrective action(s);

(iii) The method of requesting reconsideration of the HUD action

and the documentation necessary to evidence that all corrective actions

have been completed.

(e) Management improvement plan. (1) When an IHA receives a

corrective action order, it must respond to the determination, in

writing. This response must include a management improvement plan to

correct existing deficiencies. The plan shall describe in detail the

method to be used and the time schedule to be maintained, shall be

approved by the IHA Board of Commissioners, and is subject to HUD

approval.

(2) After receiving the response from the IHA, HUD may direct the

IHA to take one or more of the following actions:

(i) Submit additional information: (A) Concerning the IHA's

administrative, planning, budgeting, accounting, management, and

evaluation functions, to determine the cause for the IHA having

deficiencies, as described in paragraph (b)(1) of this section;

(B) Explaining any steps the IHA is taking to correct the

deficiencies;

(C) Documenting that IHA activities were not inconsistent with the

IHA's annual statement or other applicable statutes, regulations, or

program requirements;

(ii) Submit schedules for completing the work identified in the

MIP;

(iii) Submit additional material in support of one or more of the

statements, resolutions, and certifications submitted as part of the

IHA's MIP;

(iv) Not incur financial obligations, or to suspend payments for

one or more activities;

(v) Reimburse, from non-HUD sources, one or more program accounts

for any amounts improperly expended; or

(vi) Take such other corrective actions as HUD determines

appropriate to correct the IHA deficiencies.

(3) HUD shall determine whether the IHA has satisfied, or has made

reasonable progress towards satisfying, the management improvement

plan.

(4) If the IHA does not satisfy the terms of the plan or does not

act in good faith to meet the timeframes included in its MIP, HUD may

impose additional restrictions. In addition, existing projects may be

terminated, or other action may be instituted, as appropriate.

(f) High risk determination. An IHA may be classified as ``high

risk'' and determined ineligible for certain types of future funding

related to the classification of risk, or may be determined eligible

for future funding but subject to special conditions or restrictions

corresponding to the high risk classification. A corrective action

order listing the specific violation shall accompany the ``high risk''

designation.

(1) If an IHA is determined to be high risk, the conditions that

form the basis for that determination shall be sufficiently serious to

warrant a determination to exclude the IHA from future funding of a

particular type. The determination of high risk shall state the cause

for that finding.

(2) An IHA may continue to be eligible for funding despite a

finding that it is high risk--subject to special conditions and/or

restrictions corresponding to the deficiencies found--if it has

submitted a management improvement plan that was approved by HUD, and

it has exhibited substantial compliance with the plan or a good faith

effort to comply with the plan. If HUD determines that it is necessary

to impose special conditions or restrictions, it will notify the IHA in

writing of the applicable conditions or restrictions. One or more of

the following special conditions or restrictions may be imposed:

(i) Submission to HUD of additional documentation;

(ii) Submission to HUD of additional or more detailed financial

reports;

(iii) Additional project monitoring from the HUD Field Office;

(iv) Additional requirements for technical assistance, from HUD or

another entity approved by HUD;

(v) Establishing additional approvals by HUD;

(vi) Withholding some or all of the IHA's grant;

(vii) Declaring a breach of the ACC grant amendment with respect to

some or all of the IHA's functions; or

(viii) Any other sanction authorized by law or regulation.

(g) Appeals. (1) An IHA may appeal a corrective action order or a

determination of high risk status to the local HUD Administrator,

Office of Native American Programs (ONAP). All appeals must be made in

writing, within 30 calendar days of notice to the IHA of the HUD action

and must state clearly any justification or evidence that the action is

unwarranted or too severe. If an appeal is filed concerning one or more

action(s), the action(s) shall not take effect until HUD makes a final

determination on the appeal or notifies the IHA that special

circumstances exist that warrant giving immediate effect to the

announced HUD action. The HUD Administrator must respond to the appeal

within 30 days of receipt of the appeal.

(2) An IHA may appeal a decision of the Administrator to the ONAP,

Headquarters, only if the case involves actions related to a

determination of ineligibility of funding for the upcoming funding

cycle. An appeal of the Administrator's decision must be made to ONAP,

Headquarters in writing, stating the justification or evidence, and

must be received within 21 days of the date of the Administrator's

decision. Decisions reviewed by Headquarters will be evaluated based on

the facts as presented to the Administrator and on any aggravating or

extenuating circumstances.

(3) The IHA's Board of Commissioners must notify the Tribal

government of HUD's final determination to withhold or suspend funds or

declare a breach of the ACC grant agreement, as well as the basis for,

and consequences resulting from, such a determination.

Subpart B--Procurement

Sec. 950.160 Procurement standards.

(a) HUD standards. (1) Applicability. This subpart sets forth

Federal requirements to be followed by IHAs in the procurement of

services, supplies, and goods.

(2) Contracting authorization. An IHA may execute contracts without

HUD approval for the procurement of work, materials, equipment and/or

professional services, in accordance with paragraph (a)(3)(ii) of this

section. Before the execution of contracts, the IHA Board of

Commissioners will insure that systems are in place to ensure program

requirements are satisfied before the execution of contracts and will

periodically review compliance with such systems.

(3) Limitations. (i) An IHA shall not award a contract for the

project until the prospective contractor has demonstrated, to the

satisfaction of the IHA, the technical, administrative and financial

capability to perform contract work of the size and type involved and

within the time provided under the contract. The IHA shall not award a

contract to a person or firm on the List of Parties Excluded from

Federal Procurement and Nonprocurement Programs compiled, maintained

and distributed by the General Services Administration (GSA) or to a

person or firm that is subject to a limited denial of participation

issued by the HUD Office of Native American Programs. (See 24 CFR part

24.)

(ii) The IHA may execute or approve any agreement or contract for

personnel, management, legal, or other services with any person or firm

without the prior written approval of HUD, except under the following

circumstances:

(A) Where the term of the agreement or contract (including renewal)

is in excess of two years; or

(B) Where the amount of the agreement or contract is in excess of

the amount included for such purpose in the HUD-approved development

cost budget, or operating budget or an amount specified from time to

time by HUD, as the case may be; or

(C) Where the agreement or contract is for legal or other services

in connection with litigation if the estimated cost exceeds $25,000; or

(D) For contracts in excess of $25,000 in the aggregate where the

IHA proposes to award a contract based upon a single bid or proposal

received.

(4) Records. An IHA shall maintain records sufficient to detail the

significant history of a procurement. The IHA shall maintain evidence

in its files:

(i) That the solicitation and award procedures were conducted in

compliance with State, Tribal, or local laws and Federal requirements,

including requirements for Indian preference and wage rates;

(ii) That the award does not exceed the approved budget amount and

is not being made on the basis of a single bid or proposal; and

(iii) That the IHA reviewed the contractor's qualifications;

checked to ensure that the contractor is not listed on the GSA List of

Parties Excluded from Federal Procurement and Nonprocurement Programs;

and determined that the contractor has the capacity to successfully

complete the work or services under the terms and conditions of the

contract. This determination shall consider the contractor's record of

past performance, integrity, compliance with public policy, and

financial and technical resources.

(5) Contract administration. An IHA is responsible, in accordance

with good administrative practice and sound business judgment, for the

settlement of all contractual and administrative issues arising out of

procurement.

(6) Competition. All procurement transactions must be conducted in

a manner providing full and open competition.

(7) Contract cost and price. An IHA must perform a cost or price

analysis in connection with every procurement action, including

contract modifications.

(b) IHA standards--(1) IHA procedures. Each IHA shall adopt,

promulgate, and comply with, rules or regulations for the procurement

and administration of supplies, materials, services and equipment in

connection with the development and operation of projects. Upon

adoption or modification, the IHA will promptly furnish a copy of these

rules or regulations to HUD. These rules or regulations shall contain

provisions on at least the following subjects:

(i) Procedures to ensure that all procurement transactions are

conducted in a full and open competitive manner, consistent with the

standards of 24 CFR 85.36;

(ii) Identification (by position title) of IHA officials authorized

to enter into and approve contracts on a competitive basis as

authorized by 24 CFR 85.36(d)(4);

(iii) Procedures for inventory control;

(iv) Procedures for storage and protection of goods and supplies;

(v) Procedures for issuance of, or other disposition of, supplies

and equipment;

(vi) Procedures for implementing Indian preference requirements;

(vii) Procedures for handling complaints and protests regarding

procurement;

(viii) Standards of conduct governing IHA directors, board members,

officers and employees; and

(ix) Conflict of interest provisions governing directors, officers,

employees, contractors/developers and others doing business with the

IHA.

(2) Contract administration system. An IHA shall maintain a

contract administration system that ensures that contractors perform in

accordance with the terms, conditions, and specifications of their

contracts and purchase orders.

(c) Government-wide contract requirements. A HUD regulation found

at 24 CFR part 85 embodies government-wide administrative requirements

for grants to State, local and Federally recognized Indian Tribal

governments (including grants received by IHAs). The contract

provisions listed in 24 CFR 85.36(i) of that regulation are to be

included in any IHA contracts.

Sec. 950.165 Methods of procurement.

(a) Small purchase procedures. Small purchase procedures are those

relatively simple and informal procurement methods for securing

services, supplies, or other property that do not cost more than

$25,000 in the aggregate. If small purchase procurements are used,

price or rate quotations will be obtained from an adequate number of

qualified sources.

(b) Procurement by sealed bids (Invitations for Bid (IFB)). Bids

are publicly solicited and a firm-fixed-price contract (lump sum or

unit price) is awarded to the responsible bidder whose bid, conforming

with all the material terms and conditions of the invitation for bids,

is the lowest in price. The sealed bid method is the preferred method

for procuring construction, if the conditions in Sec. 950.165(b)(1)

apply.

(1) In order for sealed bidding to be feasible, the following

conditions should be present:

(i) A complete, adequate, and realistic specification or purchase

description is available;

(ii) Two or more responsible bidders are willing and able to

compete effectively for the business; and

(iii) The procurement lends itself to a firm fixed price contract

and the selection of the successful bidder can be made principally on

the basis of price.

(2) If sealed bids are used, the following requirements apply:

(i) The invitation for bids will be publicly advertised and bids

shall be solicited from an adequate number of known suppliers,

providing them sufficient time prior to the date set for opening the

bids;

(ii) The invitation for bids, which will include any specifications

and pertinent attachments, shall define the items or services in order

for the bidder to properly respond;

(iii) All bids will be publicly opened at the time and place

prescribed in the invitation for bids;

(iv) A firm fixed-price contract award will be made in writing to

the lowest responsive and responsible bidder; and

(v) Any or all bids may be rejected if there is a sound documented

reason.

(c) Procurement by competitive proposals (Request for Proposals

(RFP)). The technique of competitive proposals is normally conducted

with more than one source submitting an offer, and either a fixed-price

or cost-reimbursement type contract is awarded. It is generally used

when conditions are not appropriate for the use of sealed bids. If this

method is used, the following requirements apply:

(1) Requests for proposals will be publicized and identify all

evaluation factors and their relative importance. Any response to

publicized requests for proposals shall be honored to the maximum

extent practical;

(2) Proposals will be solicited from an adequate number of

qualified sources;

(3) IHAs will have a method for conducting technical evaluations of

the proposals received and for selecting awardees;

(4) Awards will be made to the responsible firm whose proposal is

most advantageous to the program, with price and other factors

considered; and

(5) IHAs may use competitive proposal procedures for

qualifications-based procurement of architectural/engineering (A/E)

professional services whereby competitors' qualifications are evaluated

and the most qualified competitor is selected, subject to negotiation

of fair and reasonable compensation. The method, where price is not

used as a selection factor, can only be used in procurement of A/E

professional services. It cannot be used to purchase other types of

services though A/E firms are a potential source to perform the

proposed effort.

(d) Procurement by noncompetitive proposals is procurement through

solicitation of a proposal from only one source, or where after

solicitation of a number of sources, competition is determined

inadequate.

(1) Procurement by noncompetitive proposals may be used only when

the award of a contract is infeasible under small purchase procedures,

sealed bids or competitive proposals and one of the following

circumstances applies:

(i) The item is available only from a single source;

(ii) The public exigency or emergency for the requirement will not

permit a delay resulting from competitive solicitation;

(iii) HUD authorizes noncompetitive proposals; or

(iv) After solicitation of a number of sources, competition is

determined inadequate.

(2) Cost analysis, i.e., verifying the proposed cost data, the

projections of the data, and the evaluation of the specific elements of

costs and profit, is required.

Sec. 950.170 Other requirements applicable to development contracts.

(a) Bonding requirements. For construction contracts for more than

$100,000, each contractor shall be required to provide bid guarantees

and adequate assurance of performance and payment acceptable to HUD in

accordance with 24 CFR 85.36(h). The following methods may be used to

provide performance and payment assurance:

(1) Performance and payment bonds for 100 percent of the total

contract price.

(2) Deposit with the IHA of a cash escrow of not less than 20

percent of the total contract price, subject to reduction during the

warranty period, commensurate with potential risk.

(3) Letter of credit for 25 percent of the total contract price,

unconditionally payable upon demand of the IHA, subject to reduction

during the warranty period commensurate with potential risk.

(4) Letter of credit for 10 percent of the total contract price and

compliance with the procedures for monitoring of disbursements by the

contractor. In the case of a Mutual Help project, the term total

contract price as used with respect to each of the above assurance

methods includes the value of all Mutual Help contributions for work,

materials, or equipment to be provided to the contractor for use in

performing the contract work.

(b) Executive Order 11246 (equal employment opportunity). Contracts

for construction work in connection with Projects under this part are

subject to Executive Order 11246 (3 CFR, 1964-65 Comp., p. 339), and

Executive Order 11375 (3 CFR, 1966-70 Comp., p. 684), and to applicable

implementing regulations (24 CFR part 130; 41 CFR chapter 60), rules,

and orders of HUD and the Office of Federal Contract Compliance

Programs of the Department of Labor. Executive Order 11246 prohibits

discrimination and requires affirmative action to ensure that employees

or applicants for employment are treated without regard to their race,

color, religion, sex, or national origin. Compliance with E.O. 11246,

and related regulations, orders and requirements shall be to the

maximum extent consistent with, but not in derogation of, compliance

with section 7(b) of the Indian Self-Determination and Education

Assistance Act.

(c) Local area residents. In accordance with section 3 of the

Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) and the

implementing regulations in 24 CFR part 135, IHAs, their contractors

and subcontractors shall make best efforts, consistent with existing

Federal, State, and local laws and regulations (including section 7(b)

of the Indian Self-Determination and Education Assistance Act, to give

low- and very low-income persons the training and employment

opportunities generated by section 3 covered assistance (as this term

is defined in 24 CFR 135.7) and to give section 3 business concerns the

contracting opportunities generated by section 3 covered assistance.

Sec. 950.172 Wage rates.

(a) Determination of prevailing wage rates. For the applicable

method of determination of the prevailing wage rates to be paid

laborers and mechanics, see Sec. 950.120(c).

(b) Preemption of prevailing wage rates. (1) A prevailing wage rate

determined under State or Tribal law shall be inapplicable to a

contract or IHA-performed work item for the development, maintenance or

modernization of a project whenever:

(i) The contract or the work item is otherwise subject to State or

Tribal law requiring the payment of wage rates determined by a State,

local, or Tribal government or agency to be prevailing and is for a

project assisted with funds for low-income housing under the Act; and

(ii) The wage rate (the basic hourly rate and any fringe benefits)

determined under State or Tribal law to be prevailing with respect to

an employee in any trade or position employed in the development,

maintenance, or improvement of a project exceeds whichever of the

following Federal wage rates is applicable:

(A) The wage rate determined by the Secretary of Labor pursuant to

the Davis-Bacon Act (40 U.S.C. 276a, et seq.) to be prevailing in the

locality with respect to such trade;

(B) An applicable apprentice wage rate based thereon specified in

an apprenticeship program registered with the Department of Labor or a

DOL-recognized State Apprenticeship Agency;

(C) An applicable trainee wage rate based thereon specified in a

DOL-certified trainee program; or

(D) The wage rate determined by the Secretary of HUD to be

prevailing in the locality with respect to such trade or position.

(2) For the purpose of ascertaining whether a wage rate determined

under State or Tribal law for a trade or position exceeds the Federal

wage rate:

(i) Where a rate determined by the Secretary of Labor or an

apprentice or trainee wage rate based thereon is applicable, the total

wage rate determined under State or Tribal law, including fringe

benefits (if any) and basic hourly rate, shall be compared to the total

wage rate determined by the Secretary of Labor or apprentice or trainee

wage rate; and

(ii) Where a rate determined by the Secretary of HUD is applicable,

any fringe benefits determined under State or Tribal law shall be

excluded from the comparison with the rate determined by the Secretary

of HUD.

(3) Whenever paragraph (b)(1)(i) of this section is applicable:

(i) Any solicitation issued by the IHA and any contract executed by

the IHA for development, maintenance or modernization of the project

shall include a statement as prescribed in this paragraph and failure

to include this statement may constitute grounds for requiring re-

solicitation. The statement that any prevailing wage rate (including

basic hourly rate and any fringe benefits) determined under State or

Tribal law to be prevailing with respect to an employee in any trade or

position employed under the contract is inapplicable to the contract

and shall not be enforced against the contractor or any subcontractor

with respect to employees engaged under the contract must be included

whenever either of the following occurs:

(A) Such nonfederal prevailing wage rate exceeds:

(1) The applicable wage rate determined by the Secretary of Labor

pursuant to the Davis-Bacon Act (40 U.S.C. 276a, et seq.) to be

prevailing in the locality with respect to such trade;

(2) An applicable apprentice wage rate based thereon specified in

an apprenticeship program registered with the Department of Labor or a

DOL-recognized State Apprenticeship Agency; or

(3) An applicable trainee wage rate based thereon specified in a

DOL-certified trainee program; or

(B) Such nonfederal prevailing wage rate, exclusive of any fringe

benefits, exceeds the applicable wage rate determined by the Secretary

of HUD to be prevailing in the locality with respect to such trade or

position.

(ii) The IHA itself shall not be required to pay the basic hourly

rate or any fringe benefits comprising a prevailing wage rate

determined under State or Tribal law and described in paragraph (b)(2)

of this section to any of its own employees who may be engaged in the

development, maintenance or modernization of the project; and

(iii) Neither the basic hourly rate nor any fringe benefits

comprising a prevailing wage rate determined under State or Tribal law

and described in paragraph (b)(2) of this section shall be enforced

against the IHA or any of its contractors or subcontractors with

respect to employees engaged in the contract or IHA-performed work item

for development, maintenance or modernization of the project.

(4) Nothing in paragraph (b) of this section shall affect the

applicability of any wage rate established in a collective bargaining

agreement with an IHA or its contractors or subcontractors where such

wage rate equals or exceeds the applicable Federal wage rate referred

to in paragraph (b)(1)(ii) of this section, nor does paragraph (b) of

this section impose a ceiling on wage rates an IHA or its contractors

or subcontractors may choose to pay independent of State law.

(5) The provisions of paragraph (b) of this section shall apply to

work performed under any prime contract entered into as a result of a

solicitation of bids or proposals issued on or after October 6, 1988

and to any work performed by employees of an IHA on or after October 6,

1988.

Sec. 950.175 Indian preference requirements.

(a) Applicability. HUD has determined that grants under this part

are subject to section 7(b) of the Indian Self-Determination and

Education Assistance Act (25 U.S.C. 450e(b)), which requires that, to

the greatest extent feasible:

(1) Preference and opportunities for training and employment shall

be given to Indians; and

(2) Preference in the award of contracts and subcontracts shall be

given to Indian organizations and Indian-owned economic enterprises.

(b) Definitions. Indian organizations and Indian-owned economic

enterprises include both of the following:

(1) Any economic enterprise as defined in section 3(e) of the

Indian Financing Act of 1974 (25 U.S.C. 1452); that is, ``any Indian-

owned commercial, industrial, or business activity established or

organized for the purpose of profit provided that such Indian ownership

and control shall constitute not less than 51 percent of the

enterprise''; and

(2) Any ``Tribal organizations'' as defined in section 4(c) of the

Indian Self-Determination and Education Ass

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