Notice of Interdepartmental Agreement on Indian Housing Program

SUMMARY: This notice announces an Interdepartmental Agreement which

sets forth the guidelines by which HUD, the Bureau of Indian Affairs,

and the Indian Health Service will coordinate their efforts in the

delivery of services and financial assistance to Tribes and Indian

Housing Authorities.

EFFECTIVE DATE: September 10, 1996.

FOR FURTHER INFORMATION CONTACT: Dominic Nessi, Deputy Assistant

Secretary for Native American Programs, Office of Public and Indian

Housing, Department of Housing and Urban Development, Room B-133, 451

Seventh Street, SW, Washington, DC 20410; telephone (202) 755-0032.

Hearing- or speech-impaired individuals may access this number by

calling the Federal Relay Service TTY at 1-800-877-8339. (With the

exception of the ``800'' number, these are not toll-free numbers.)

SUPPLEMENTARY INFORMATION:

I. September 2, 1994 Notice of Proposed Interdepartmental Agreement

On September 2, 1994 (59 FR 45702) HUD published a notice which

proposed to set forth the working relationship among HUD, the Bureau of

Indian Affairs (BIA), and the Indian Health Service (IHS) in the

delivery of services to Tribes and Indian Housing Authorities (IHAs) in

conjunction with the planning and construction of new housing developed

with financial assistance of HUD's Indian housing program.

The Interdepartmental Agreement (IA) establishes a general

foundation for this cooperative effort and guidelines by which each of

the three agencies will interact with Tribal governments and IHAs. The

IA will be supplemented, as necessary, by individual Memorandums of

Agreement (MOA) developed between local decision makers and the

specific Federal agencies assisting in the development of the housing.

The BIA Housing Improvement Program (HIP) was eliminated from this

IA to streamline the agreement among all signatory agencies in the

development of HUD Indian housing programs. It is anticipated that the

IHS and the BIA will be addressing the BIA-HIP separately. Other

sections pertaining to program procedures are more appropriately

covered in the program handbook or program NOFA and have been deleted

from the IA.

HUD solicited public comments on the proposed IA. Eight comments

were received. The following section of the preamble presents a summary

of the comments raised by the commenters, and HUD's responses to these

comments.

II. Comments on the September 2, 1994 Notice of Proposed

Interdepartmental Agreement

Comment. Two commenters wrote that proposed section 5.2.1 of the

IA, which concerns the construction of access roads, should be revised

to clarify that the BIA ``has responsibility for access roads which

provide public access to cluster sites only and not private access to

individual sites which the BIA is prohibited from constructing.''

Response. HUD has adopted the comment by revising section 5.2.1 to

exclude individual homesites from the access road construction

requirements.

Comment. One commenter wrote that the language in proposed section

5.2.1 granting the BIA a lead time of 2\1/2\ years in the construction

of access roads should be revised. The commenter believed that ``in the

2\1/2\ year interim, the `temporary' access road built by the IHA

becomes unacceptable as there is a void of responsibility for

constructing a permanent access road. The BIA should be required to

pick up these roads immediately after the IHA has completed the

project.''

Response. HUD has not revised the IA as a result of this comment.

Due to budgetary prioritization, the 2\1/2\ year time-frame is

necessary for BIA to complete its part of the project.

Comment. Two of the commenters urged that the IA provide for

greater coordination in National Environmental Policy Act (NEPA)

compliance efforts. One of the commenters recommended that section 7.0

be revised to specify that each signatory agency will follow procedures

in a manner which will avoid or minimize delays and that timelines for

compliance will be included in time schedules worked out at the project

coordination meeting. The other commenter suggested that the IA permit

the designation of a lead agency ``in performing NEPA compliance where

the project encompasses the functions of all [three] agencies.'' The

commenter believed this would expedite the development of a project by

eliminating ``multiple comment periods, multiple opportunities for

litigation, and multiple FONSIs or EISs.''

Response. Based upon the IHS's recommendation, HUD has revised the

IA as a result of these comments. Section 7.0 now provides that in

order to minimize delays, HUD, or the Tribal government which has

assumed HUD's NEPA responsibility, shall be the lead agency for the

preparation of all required environmental statements.

Comment. One commenter wrote that the IA should address land

acquisitions since, according to the commenter, ``acquisitions require

as much coordination between the BIA and HUD as does development.''

Specifically, the commenter believes the BIA should delegate authority

to area offices to approve land acquisitions. Alternatively, the

commenter proposed that the BIA designate a person to exclusively

review and approve HUD financed land acquisitions. Moreover, the

commenter suggested that the IA require NEPA review of these

acquisitions.

The commenter also suggested that HUD and the BIA coordinate their

acquisition related time requirements. The commenter believed that, due

to the time needed by the BIA to take land in trust, some IHAs may not

be able to meet HUD's requirement that construction commence within 30

months of a program reservation date. The commenter urged that HUD and

the BIA ``negotiate time lines and procedures to avoid these

conflicts.''

Response. HUD and the BIA will work more closely in coordinating

time requirements.

Comment. One commenter wrote to suggest that proposed section 2.2

of the IA be revised to specify that the BIA will review and approve

all Tribal trust, restricted fee and allotted land housing leases in

accordance with 25 CFR part 162. Furthermore, the commenter suggested

additional language stating that BIA will review and approve all

easements to housing sites in accordance with 25 CFR part 169. Lastly,

the commenter recommended that proposed section 2.3 be revised to

[[Page 47789]]

require that all housing sites have approved easements and leases

before the start of construction.

Response. HUD has adopted the first two elements of this comment.

In reference to requiring the IHAs to complete all easements and leases

prior to construction, this is a requirement that is inappropriate for

this IA since the IA does not encompass the Indian Housing Authorities.

This is a requirement that would more appropriately be added to the

local Memorandum of Understanding (MOU).

Comment. One commenter objected to the fact that proposed section

2.2 of the IA ``does not specifically state that the BIA is responsible

for funding access road construction in HUD assisted housing

projects.'' According to the commenter, ``this weakens the BIA's

responsibility of supporting HUD-assisted housing projects.''

Response. HUD has not adopted this comment. The IA does not have

the force of law, but merely sets forth the coordination efforts of

HUD, the BIA, and the IHS. Accordingly, the comment is inappropriate

for inclusion in the IA.

Comment. Two commenters objected to the language in proposed

section 6.3, IHS PARTICIPATION IN HUD FUNDED SANITATION FACILITIES

CONSTRUCTION, which states that the IHS ``may participate'' in the

construction of sanitation facilities. According to the commenters

``this statement does not adequately commit the IHS to execute their

responsibility for sanitation system development which servers [sic]

Native Americans.''

Response. Based on the IHS's recommendation, HUD has adopted this

comment by revising section 6.3 to require that the IHS endeavor to

participate in the construction of sanitation facilities.

Comment. One commenter wrote that because the IA's scope is limited

to Indian mutual help and low rent programs, it does not go far enough

in achieving coordination between the signatory Federal agencies. The

commenter recommended that other programs, such as Indian HOME and the

BIA Housing Improvement Program (HIP) be included in the IA.

Response. HUD has not revised the IA as a result of this comment.

The HOME and HIP programs have different requirements and agency

responsibilities. If the coordination of efforts becomes a problem for

these programs, separate agreements can be negotiated.

Comment. One of the commenters recommended that language be

inserted in section 5.0, DEVELOPMENT OF ON-SITE AND OFF-SITE ROADS,

which includes the ``standards of road design and construction that

would be required to assure States, cities, counties, townships, etc.

assume responsibility for the maintenance and up-keep of roads and

streets within the on-site construction area.'' These standards would

be in effect when the State and local government have construction and

design requirements that exceed ASHTO requirements.

Response. HUD has not revised the IA as a result of this comment.

Under 24 CFR 905.250, the IHAs are already required to comply with

appropriate local road design standards.

Comment. One of the commenters recommended that the IA specify

which agencies are responsible for the costs of complying with Federal,

State, or local statutory requirements. Among other examples, the

commenter pointed to the costs associated with meeting EPA

environmental requirements.

Response. HUD has not revised the IA as a result of this comment.

The question of financial responsibility for complying with the various

statutory requirements is more properly addressed in the individual

MOAs.

Comment. One commenter wrote that the IA was vague concerning IHS

duties. The commenter urged that the IA be revised to specify that the

IHS has the responsibility of providing water, waste water and solid

waste facilities, and O&M infrastructure.

Response. Based on the IHS's recommendation, HUD has adopted this

comment by revising section 6.2. This section now details the IHS's

statutory authority and responsibility for utilizing HUD funds to

provide sanitation facilities for HUD financed Indian homes.

The text of the Interdepartmental Agreement follows:

Interdepartmental Agreement on the Indian Housing Program

The Department of Housing and Urban Development--Office of Native

American Programs

The Department of Interior--Bureau of Indian Affairs

The Department of Health and Human Services--Indian Health Service

1.0 Statement of Purpose

The purpose of the Interdepartmental Agreement (IA) is to set forth

the working relationship among the Department of Housing and Urban

Development (HUD), the Bureau of Indian Affairs (BIA), and the Indian

Health Service (IHS) in the delivery of services to Tribes and Indian

Housing Authorities (IHAs) in conjunction with the planning and

construction of new Indian housing developments. The above agencies

share a common goal to assist Tribes in improving their living

environment through the delivery of quality housing and infrastructure.

This goal can be more readily achieved with an efficient and integrated

utilization of available resources.

This Interdepartmental Agreement establishes a general foundation

for this cooperative effort and the guidelines by which each of the

three agencies will interact with Tribal governments and IHAs. The IA

will be supplemented, as necessary, by individual Memorandums of

Agreement (MOA) developed between local decision-makers and the

specific federal agencies assisting in the development of the housing.

2.0 General Agency Responsibilities

2.1 HUD Responsibilities. HUD will provide financial and technical

assistance for the development and management of low income housing and

community developments in Indian and Alaska Native areas through the

mutual help/low rent Indian Housing Development Program.

2.2 BIA Responsibilities. BIA will provide real estate and

transportation assistance to IHAs pursuant to 25 CFR parts 162, 169,

and 170. These services may include (i) assistance in preparing

appropriate lease documents for housing sites and required easements;

(ii) review, approval and recordation of all required trust or

restricted fee land lease and easement documents; where resources are

available, providing assistance in obtaining real estate appraisals;

(iii) development of access roads to housing sites in accordance with

the Tribe's road priorities; (iv) providing maintenance services to

those IHA constructed roads and streets accepted into the BIA road

systems in accordance with 25 CFR part 170; and (v) provision of other

support, when available, necessary for the timely development of

housing.

2.3 IHS Responsibilities. The IHS provides a comprehensive primary

and preventive health services delivery system for American Indians and

Alaska Natives. The environmental health component of IHS assists

Tribes in the development of Tribal sanitation facilities [water, waste

water, and solid waste facilities and operation & maintenance (O&M)

infrastructure]. IHS has the primary responsibility and authority to

provide Native American homes and communities with the necessary

sanitation facilities and related services.

[[Page 47790]]

3.0 Agency Coordination

3.1 Processing Procedures. The signatories of the IA agree to

maintain timely and relevant processing of regulations, handbooks,

notices and other administrative guidance for use by Tribes and IHAs.

All signatory agencies will be given an opportunity to comment on such

documents before they are made effective.

3.2 Program Administration. The signatories of the IA agree to

enforce the provisions of current program guidelines with their

respective area/regional offices. Disputes between or among the

signatory agencies may be made in writing to the head of the

appropriate area or field office involved, with a copy to the other

agencies. Unresolved disputes extending more than 90 days beyond the

date of submission shall be referred, in writing, to the Headquarters

Working Group for resolution. This group is composed of the Director,

Office of Native American Programs in HUD; Director, Office of Trust

Responsibilities in BIA; and the Director, Division of Environmental

Health in IHS.

3.3 Information Sharing. Whenever possible, the signatory agencies

will provide, or cause to be provided, copies of housing and supporting

infrastructure planning documents, to include utility master plans,

transportation plans, and IHA comprehensive housing plans, to the

appropriate area/regional offices of other signatory agencies.

HUD Field Offices of Native American Programs will provide

quarterly reports on the progress of HUD's assisted housing projects to

BIA and IHS. These reports will indicate the method of construction,

project number, and number of units. Scheduled and actual completion

dates for applicable project review points will be provided, where

available.

3.4 Grant Award. Signatory agencies will provide copies of

applicable housing and supporting infrastructure grant/project award

notices to the other signatory agencies as soon as practicable after

notification to Tribes.

4.0 Development of Housing Units

4.1 HUD Responsibilities.

4.1.1 Applications. HUD will advise IHAs to use BIA and IHS

information on existing infrastructure and new construction

recommendations to support proposed housing project applications for

funding.

4.1.2 Project Coordination. HUD will advise IHAs to use handbooks

concerning procedures the IHA may use to determine what assistance they

need from the BIA and IHS. At the request of a Tribe through the IHA,

the BIA (including Area Road Engineers and Realty Officers) and IHS

will provide, to the extent feasible, technical reviews and

recommendations on project planning, design and construction documents

involving supporting infrastructure, and related requirements at

appropriate project review points. Appropriate project review points

will be determined on a project by project basis and may include:

project coordination schedule review, housing site feasibility review,

project plan review, project final inspection, and record drawings

review. Schedules or commitments made as a result of project

coordination require the approval of the appropriate IHS and/or BIA

official.

4.1.3 Standard vs Assisted Housing Development Method. The

Standard Method of development refers to all procedures, guidelines and

requirements associated with the normal development of an Indian

housing project by an administratively capable IHA. The Assisted Method

contains all of the procedures, guidelines and requirements associated

with the development of an Indian housing development by an IHA which

has requested additional HUD assistance due to its inexperience or lack

of staff resources, or by an IHA which has been deemed by HUD to need

additional assistance, monitoring and supervision during the

development process. The Standard Method will require less technical

assistance by the signatory agencies as compared to the Assisted

Method.

4.2 BIA Responsibilities.

Leases, Easements and Real Estate Appraisals on Trust or Restricted

Fee Property. Where resources are available, the BIA will provide real

estate appraisals at the request of the IHA. All leases and easements

shall be approved by the BIA.

5.0 Development of On-site and Off-site Roads

5.1 HUD Responsibilities.

On-Site Street Construction. HUD will provide sufficient funds for

the construction of on-site streets, in accordance with the American

Association of State Highway and Transportation Officials (AASHTO)

standards. The IHA will have the overall responsibility for

construction of on-site streets. The Tribal government must determine

the type of streets to be constructed in conjunction with housing

projects, and whether the streets will be included in the BIA Roads

System for maintenance by the BIA. HUD will advise each IHA and Tribe

which receives a HUD Housing Grant that the on-site streets must be

designed and constructed to AASHTO standards to be eligible for

inclusion on the BIA Roads System.

5.2 BIA Responsibilities.

5.2.1 Access Road Construction. When requested by the Tribal

government, and when resources are available, the BIA will plan and

construct access roads to housing developments, excluding individual

homesites. Sufficient lead time is required to develop access roads.

This lead time may be as much as 2\1/2\ years. The BIA will coordinate

access road construction with the IHA and make every effort to complete

such roads prior to the completion of the housing project.

5.2.2 Road/Street Maintenance. IHA-developed streets may be added

to the BIA Roads System only when the street(s) and related curb,

gutters and drainage features have been built to acceptable AASHTO

specifications and standards as well as to the requirements of section

504 of the Americans with Disabilities Act, and the right-of-way is

transferred to the BIA. When requested by the Tribal government, and

when resources are available, the BIA Area Office will accept IHA

developed streets on the BIA Roads System and will provide ongoing

maintenance for those streets that meet the above specifications and

standards.

6.0 Development of Sanitation Facilities

6.1 HUD Responsibility. To the extent that funds are appropriated

by Congress, HUD will provide funding to IHAs to develop water, waste

water, solid waste facilities, and O&M infrastructure necessary to

support individual low-rent or mutual help housing projects financed by

HUD. O&M infrastructure includes the plant, equipment, tools and

training needed by utility authorities to provide continuing sanitation

service to the residents of HUD-financed homes, as well as the long

range planning necessary to identify and implement those requirements.

6.2 IHS Authority. Under section 302(b)(3) of the Indian Health

Care Improvement Act, the IHS has the authority to receive HUD funds to

provide sanitation facilities for Indian homes financed by HUD.

6.3 IHS Participation in HUD Funded Sanitation Facilities

Construction. When requested by the Tribe and the IHA, IHS will

endeavor to participate in the construction of sanitation facilities

funded by HUD under the mutual help/low rent HUD-assisted housing

development program. IHS participation will be on a project by

[[Page 47791]]

project basis, pursuant to an approved MOA duly executed by the IHA,

Tribe, IHS, and if necessary, HUD.

6.4 Individual and Community Sanitation Systems. Where it is

determined that sanitation facilities are feasible and necessary, the

following conditions will apply:

6.4.1 HUD will finance the installation of all dwelling plumbing

facilities.

6.4.2 Where facilities serve only HUD-assisted housing project

homes, HUD will fund the total cost of the sanitation facilities

necessary to serve the project. Where HUD-assisted housing project

homes are interspersed with existing homes also served by a sanitation

facility, HUD shall fund a prorated share of sanitation facilities

costs. All community sanitation system construction, improvement, or

expansion will be designed on the basis of a total community concept,

such that the proposed sanitation facilities are (a) safe and adequate

to meet the environmental health needs of residents, (b) compatible

with Tribal infrastructure development, (c) economically feasible to

construct and operate, and (d) in compliance with applicable codes,

ordinances, and industry standards.

7.0 Environmental Compliance

Each signatory agency (HUD, BIA, and IHS) shall be responsible for

following its own applicable procedures addressing the requirements of

the National Environmental Policy Act (NEPA), and related and/or

similar environmental legislation and/or Executive Orders. A Memorandum

of Understanding (MOU), dated June 21, 1991, signed by BIA, HUD, IHS,

and the Environmental Protection Agency, clarifies each agency's role

in environmental protection.

In the implementation of the roles and responsibilities identified

in the MOU and herein, signatory agencies will, to the extent feasible,

adopt and/or combine environmental documents which are provided by the

other signatory agencies. Joint use of environmental documents that

comply with NEPA and related regulations will reduce duplication and

paperwork. Copies of one signatory agency's environmental determination

documentation (e.g., archeological review) may be required by another

signatory agency prior to granting approvals; however, the approving

agency shall not require the applying agency to change procedures,

format, etc., during the review process and prior to granting its

approval.

Unless otherwise provided for in a duly executed MOA, HUD, or a

Tribal government which has assumed HUD's NEPA responsibility, shall be

the lead agency for the preparation of environmental review,

assessments and impact statements in compliance with NEPA for all HUD-

assisted housing and related infrastructure projects. When BIA and IHS

participate directly in these projects, they shall be cooperating

agencies for the purposes of NEPA compliance.

Dated: April 30, 1996.

Donna E. Shalala,

Secretary, Department of Health and Human Services.

Dated: August 19, 1996.

Bruce Babbitt,

Secretary, Department of the Interior.

Dated: May 6, 1996.

Henry G. Cisneros,

Secretary, Department of Housing and Urban Development.

[FR Doc. 96-22923 Filed 9-9-96; 8:45 am]

BILLING CODE 4160-16-P; 4210-33-P; 4310-02-P