Streamlining the Comprehensive Improvement Assistance Program and Comprehensive Grant Program

Federal RegisterMar 5, 1996

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SUMMARY: This rule amends 24 CFR parts 950 (formerly 905) and 968 to

streamline, simplify and eliminate unnecessary requirements for the

Department's two modernization programs used in the public housing and

Indian housing programs. The Comprehensive Improvement Assistance

Program (CIAP) is used by Public Housing Agencies (PHAs) and Indian

Housing Authorities (IHAs) that own or operate fewer than 250 public

housing units. The Comprehensive Grant Program (CGP) is used by PHAs

and IHAs that own or operate 250 or more public housing units.

The rule also combines into provisions of a part dealing with

general provisions applicable to PHA-owned projects (part 965) the

nearly identical provisions concerning prevailing wage rates that have

been found in the development and modernization parts for public

housing (parts 941 and 968).

EFFECTIVE DATE: April 4, 1996.

FOR FURTHER INFORMATION CONTACT:

For Public Housing: William J. Flood, Director, Office of Capital

Improvements, Public and Indian Housing, Department of Housing and

Urban Development, Room 4134, 451 Seventh Street, S.W., Washington,

D.C. 20410-5000, telephone (202) 708-1640.

For Indian Housing: Deborah M. LaLancette, Director, Housing

Management Division, Office of Native American Programs, Public and

Indian Housing, Room B-133, Department of Housing and Urban

Development, 451 Seventh Street S.W., Washington, D.C. 20410, telephone

(202) 755-0088.

Hearing- or speech-impaired persons may use the Telecommunications

Devices for the Deaf (TDD) by contacting the Federal Information Relay

Service on 1-800-877-TDDY (1-800-877-8339) or (202) 708-9300. (Other

than the ``800'' TDD number, telephone numbers are not toll-free.)

SUPPLEMENTARY INFORMATION:

I. Paperwork Burden

The information collection requirements contained in this rule

remain essentially unchanged. They are merely moved to different

section numbers as part of this consolidation effort. (See

Secs. 950.618, 950.622, 950.630, 950.632, 950.634, 950.636, 968.135,

968.145, 968.210, 968.215, 968.225, and 968.230, previously approved by

the Office of Management and Budget (OMB) in accordance with the

Paperwork Reduction Act (44 U.S.C. 3501-3520) under OMB control number

2577-0044 (CIAP). See also Secs. 950.650, 950.656, 950.658, 968.310,

968.325, and 968.330, previously approved by OMB under control number

2577-0157 (CGP).)

II. Background

Upon assuming the leadership of the Department of Housing and Urban

Development (HUD) in 1993, Secretary Cisneros made the reinvention of

HUD one of his first priorities. HUD's reinvention efforts took place

in the context of a broader, government-wide reinvention process, the

National Performance Review, under the leadership of Vice President

Gore. At that time, HUD established five program goals to accomplish

its mission that involved working for healthy growth in cities,

providing adequate housing for all, and protection of society's most

vulnerable people.

HUD determined that one of the first steps needed in its

transformation from the old HUD to a new HUD was the consolidation and

streamlining of funding programs. HUD recently submitted to Congress

sweeping changes to transform public housing to a resident-based

program.

Another aspect of the reinvention involves HUD's rules, which have

been at the forefront of HUD's reinvention efforts since those efforts

commenced in 1993. The foundation of HUD's regulatory process is

Executive Order 12866 (Regulatory Planning and Review) issued by

President Clinton on September 30, 1993. This order directs agencies

to, among other things, explore regulatory alternatives and, if

regulations are determined to be necessary, to select approaches that

maximize benefits and involve enhanced public accessibility and

participation in the rulemaking process.

HUD has done a comprehensive review of 24 CFR part 968, Public

Housing Modernization. Part 968 contains 3 subparts, covering general

requirements and separate requirements for the Comprehensive

Improvement Assistance Program (CIAP) and Comprehensive Grant Program

(CGP). Based on its comprehensive review, HUD has determined that

certain provisions from CIAP and CGP can be consolidated in the general

provisions, subpart A. HUD also has determined that there are a number

of revisions that should be made to simplify subpart B for CIAP and

subpart C for CGP. Similar changes are also being made to 24 CFR part

950, subpart I, which covers the modernization program requirements for

Indian Housing.

In addition to the simplifications mentioned above and described in

more detail in Part III below, the Department is also responding in

this rule to public comments received on the interim CIAP rule

published March 15, 1993 (58 FR 13916). This rule also makes changes

resulting from experience gained during the Federal Fiscal Years (FFYs)

1993, 1994, and 1995 funding competitions (see Part IV below).

[The reader should note that, hereafter, for ease of discussion,

the preamble to this final rule uses the term ``housing authorities

(HAs)'' to refer to both public housing agencies (PHAs) and Indian

Housing Authorities (IHAs) and the term ``public housing'' to refer to

both Public and Indian housing, unless otherwise stated. In addition,

the term ``development'' is used to refer to ``low-income projects,''

as defined at section 3(b)(l) of the Act.]

III. Reinvention Changes for CIAP and CGP

As a part of other pending rulemakings, various Federal

requirements that are applicable to a number of the Department's

programs, including modernization, are being moved to Department-wide

common rules. One example of such provisions are those now contained in

Sec. 968.110, Other Federal requirements.

The current section covers civil rights compliance, minority and

women's business enterprise opportunity, lead-based paint poisoning

prevention, environmental clearance, flood insurance, and wage rates,

as well as audits, uniform administrative requirements, and energy

conservation. Most of the civil rights authorities, including

references to minority and women's business enterprise opportunity,

have been consolidated into the Department-wide rule (24 CFR part 5)

listing provisions applicable to all of the Department's programs. That

rulemaking revised Sec. 968.110 to refer to the Department-wide rule,

leaving a few additional authorities in Sec. 968.110(a). Another

pending rulemaking addresses

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the applicability of lead-based paint poisoning prevention.

This rulemaking also revises Sec. 968.110 as follows:

Sec. 968.110(i), Audits, is being moved to a new Sec. 968.145, Fiscal

closeout; Sec. 968.110(j), Uniform administrative requirements, is

being moved to a new Sec. 968.135, Contracting requirements;

Sec. 968.110(l), Energy conservation, is being moved to a revised

Sec. 968.115, Modernization and energy conservation standards; and the

cross-reference in paragraph (e)(3) for preemption of prevailing wage

rates is changed to 24 CFR 965.101. (Section 965.101 is amended in this

rulemaking to broaden the coverage of its preemption of prevailing wage

rates to extend to development and modernization, as well as to

operations.)

Existing Sec. 968.120, dealing with preemption of State prevailing

wage requirements, is being moved to and combined with Sec. 965.101.

The Indian housing program is not affected by the consolidation of

general provisions by the other pending rulemaking. Consequently,

Sec. 950.120 still contains comparable provisions.

IV. Relation of Current Regulations Sections to Final Rule Sections

The following chart shows the locations of similar provisions:

------------------------------------------------------------------------

New section Current sections

------------------------------------------------------------------------

950.604............................. 950.601

950.606............................. 950.667

950.608............................. 950.615, 950.666

950.610............................. 950.603

950.612............................. [New provision]

950.614............................. 950.635

950.616............................. 950.639

950.618............................. 950.642

950.620............................. 950.645

950.622............................. 950.657

950.630............................. 950.618

950.632............................. 950.624

950.634............................. 950.648

950.636............................. 950.651

950.638............................. [New provision]

950.640............................. 950.654, 950.675

950.650............................. 950.669

950.652............................. 950.672

950.654............................. 950.675

950.656............................. 950.678

950.658............................. 950.684

950.660............................. 950.687

968.104............................. 968.312

968.112............................. 968.210, 968.310

968.125............................. 968.225

968.130............................. 968.230

968.135............................. 968.235

968.140............................. 968.240

968.145............................. 968.260

968.210............................. 968.215

968.215............................. 968.220

968.225............................. 968.245

968.230............................. 968.250

968.235............................. [New provision]

968.240............................. 968.345

968.310............................. 968.315

968.315............................. 968.320

968.320............................. 968.325

968.325............................. 968.330

968.330............................. 968.340

968.335............................. 968.345

------------------------------------------------------------------------

V. Public Comments and Description of the Simplified CIAP

A. Public Comments

The Department received public comments on the March 1993 interim

rule from four HAs and two HA interest groups (National Association of

Housing and Redevelopment Officials (NAHRO) and Public Housing

Authorities Directors Association (PHADA)). The commenters agreed that

HUD has made substantial progress in simplifying the CIAP, and pointed

out additional areas for simplification or clarification.

Relocation requirements. The March 1993 interim rule revised parts

905 (now 950) and 968 by updating the displacement, relocation and

acquisition requirements pursuant to the Uniform Relocation Assistance

and Real Property Acquisition Policies Act of 1970, as amended, and by

removing the relocation requirements from the ``Other program

requirements'' sections and creating separate sections for the

relocation requirements at new Secs. 905.117 (now 950.117) and 968.108.

Comment: PHADA and two HAs recommended that HUD be required to

respond to an HA's request for a determination of coverage under the

relocation requirements (Secs. 968.108(g)(3) and 950.117(g)(3)) within

30 calendar days or within a longer stated period or provide a rebuttal

period or the HA's interpretation would be accepted as final.

Response: The Department agrees that dialogue between HUD and an HA

is important and should start in the planning stage. Technical

assistance on relocation matters is readily available from Community

Planning and Development relocation staff in HUD Field Offices. HUD

will make every effort to respond promptly to HA requests for

assistance. However, HUD cannot restrict the time period for a response

as suggested. HUD's relocation rules implementing statutory

requirements guaranteeing benefits to eligible persons cannot be

amended by this rulemaking. In fact, HUD relies on regulations issued

by the Department of Transportation for government-wide requirements,

at 49 CFR part 24 (see 24 CFR part 42). A delay in HUD's response does

not relieve an HA of its responsibility to comply with the Uniform

Relocation Act, where applicable.

Definition of modernization capability. Comment: PHADA commented

that the determination of no modernization capability be afforded an

appeal to the Regional Administrator, and that HUD be required to

inform the HA as to why the determination was made and what facts the

determination is based on. Response: With regard to the Public Housing

Management Assessment Program (PHMAP), the PHA may appeal its score on

the Modernization indicator to the Field Office; if that appeal is

denied, the PHA may appeal to HUD Headquarters. The HUD reorganization

eliminated the Regional Offices. With regard to the CIAP technical

review factor of modernization capability, HUD will provide guidance in

the revised CIAP Handbook on how Field Offices should score the

technical review factors, including modernization capability, to ensure

greater uniformity among Field Offices. In addition, HUD has made

clarifying changes to the definitions of modernization capability at

Secs. 950.102 and 968.205 to ensure that no arbitrary exclusion of

participation due to lack of modernization capability will occur.

Management improvement costs. Comment: PHADA agreed with HUD on

allowing CIAP programs composed solely of management improvements. Two

HAs questioned whether training related to management improvements is

eligible. Response: Training costs related to carrying out CIAP-

approved physical and management improvements are eligible. See

Secs. 950.608(g)(2)(ii) and 968.112(g)(2)(ii).

Comment: Two HAs also asked if office space and storage space are

eligible costs. Response: Such costs are eligible. See Secs. 950.608(c)

and 968.112(c).

Comment: PHADA indicated that some Field Offices have traditionally

frowned on management improvement requests. Response: This rule

clarifies that eligible management improvements, either development

specific or HA-wide, may be approved as single work items under Other

Modernization. In addition, this rule specifically states that the

establishment of a preventive maintenance system or improvement of an

existing system is an eligible management improvement. See

Secs. 950.608(g)(2)(v) and 968.112(g)(2)(v).

Reasonable cost and total development cost (TDC). Comment: PHADA

agreed with the definition of reasonable cost (hard costs not exceeding

90% of TDC) for most cases, but suggested exceptions for compliance

with accessibility requirements and

[[Page 8714]]

remedying environmental problems, such as asbestos and lead-based

paint. It was suggested that these types of situations are not taken

into account by the cost indices upon which TDC is based and,

therefore, should be excluded from the definition. In addition, many

IHAs with large numbers of homeownership (Mutual Help) units are

performing comprehensive-type, not piecemeal, modernization.

Response: The rule has been revised to use the previous definition

of reasonable cost (90% of TDC) and to handle any special cases on a

case-by-case basis. The Department had tried a method that allowed more

flexibility, which we have now determined to be inappropriate.

In the August 30, 1995, final rule streamlining the CGP, the

Department added a second method of determining cost reasonableness to

provide HAs with greater flexibility in determining the cost of

rehabilitation versus the cost of demolition and new development. HAs

could choose one of two methods which were: (1) unfunded modernization

hard costs do not exceed 90 percent of computed total development cost

(TDC); or (2) individual work items are reasonable in accordance with

National cost indices, adjusted by local conditions and the HA's own

recent procurement experience. During the FY 1995 program year, it

became evident that use of the second method was having unintended

consequences by allowing some very high cost developments to be

determined to have reasonable cost. This result is inappropriate in the

current environment of limited funding. Since it is clear that

resources for Public and Indian Housing will remain constrained, it is

incumbent on both the Department and the HAs to assure maximum return

for the dollars invested. It is not tolerable to allow large-scale

Federal investments to be made in properties which will remain

uneconomical or provide marginally suitable housing even after such

investments are made.

Accordingly, the Department has eliminated the second method of

determining cost reasonableness, but has provided that the 90 percent

of TDC limit may be exceeded where justified, and applied this

procedure to both CIAP and CGP. If the HA and the Field Office

recommend funding for a development which exceeds 90 percent of TDC,

the Field Office must submit written justification to Headquarters for

final decision.

Social services. Comment: PHADA and three HAs suggested that

eligible costs include the direct provision of social services, because

it is essential to enhance the living conditions and self-sufficiency

opportunities for residents of small HAs. It was suggested that HUD

allow start-up costs and reasonable operating costs for three years

conditioned on the HA being able to provide HUD up-front with a

reasonable plan for continuing the program after the CIAP funds are

expended. Response: Although the 1995 Rescissions Act expanded the

eligible activities that may be funded under Section 14 of the Act with

FFY 1995 and prior year modernization funds, to include the direct

provision of social services, there is no permanent statutory authority

for eligibility of such activities. Therefore, the rule excludes the

direct provision of social services from future year funding unless

otherwise provided by law. If a later appropriation act specifically

permits eligibility for these services, that change will be handled by

language in the Notices of Funding Availability for the affected years.

Program benefit. Comment: PHADA and four HAs questioned the program

benefit rules at Secs. 950.615(j)(3) and 968.210(j)(3) (now found in

Secs. 950.608(n)(3) and 968.112(n)(3)). Response: The rule provides

that where the physical or management improvement will benefit programs

other than Public or Indian housing, such as Section 8 or local

revitalization, eligible costs are limited to the amount directly

attributable to the Public or Indian Housing Program. CIAP assistance

must be used for the purposes expressed in the statute and not for

other programs or purposes. OMB Circular A-87 also requires this

program benefit rule. There is no statutory authority to use CIAP funds

to subsidize the Section 8 program as suggested.

Ineligible costs. Comment: PHADA and four HAs mentioned arguments

HAs have had with Field Offices regarding ineligible costs. The rule at

Secs. 950.615(k) and 968.210(k) stated that an HA shall not make luxury

improvements, or carry out any other ineligible activities, as

specified by HUD. Response: HUD has consulted with HA industry groups

on the eligibility and ineligibility of various work items. In January

1994, the Department revised its policy, under the Public Housing

Development Program and the CGP, on work items previously considered

amenities to provide HAs with maximum flexibility. The Department is

now extending that revised policy to the CIAP to allow work items that

are modest in design and cost, but still promote the blending in of

Public and Indian housing with the design and architecture of the

surrounding community by including amenities, quality materials and

design and landscaping features that are customary for the locality and

culture. However, no additional operating subsidy will be provided.

Accordingly, the CIAP provisions on ineligible costs at

Secs. 950.615(b) and 968.210(b) have been revised and moved to

Secs. 950.608(o) and 968.112(o) to incorporate this policy. The CGP

provisions on ineligible costs at Secs. 950.666(c) and 968.310(c) also

have been revised and moved to Secs. 950.608 and 968.112 to incorporate

this policy, consolidating in one section for IHAs and another for PHAs

the policy applicable to both the CIAP and CGP.

Administrative and maintenance space guidelines. Comment: PHADA and

three HAs commented that HUD needs to reexamine the standards for

allowable administrative and maintenance space. Response: HUD has

consulted with HA industry groups on this issue during the CGP

rulemaking. A survey by NAHRO concluded that the variation among HAs is

so great in terms of the programs which they operate for the benefit of

the Public or Indian Housing Program, it is impossible to establish

standards for such space. The Department agrees that establishing space

standards is very difficult and, accordingly, is eliminating the

maximum space guidelines for management, maintenance and community

space. Instead, Field Offices are given, at Secs. 950.608(c) and

968.112(c), the authority to approve space in accordance with the

general principles of program need and benefit, as well as sound

business practices.

Expedited NOFA publication. Comment: PHADA and two HAs urged HUD to

publish CIAP NOFAs within 60 days of passage of an Appropriations Act

or 30 calendar days from the start of a FFY, whichever is later,

assuming there are no major statutory changes adopted in the

Appropriations Act. Response: Secretary Cisneros has made expedited

publication of NOFAs a priority. However, the amount of funds available

for the CIAP each year cannot be determined until the modernization

formula is run. The formula determines the funding split between the

CIAP and the CGP. Revisions to the CGP (e.g., earlier update of the

Formula Characteristics Report for CGP agencies) have enabled the

Department to run the modernization formula earlier in the FFY, which,

in turn, has benefitted the CIAP. The Department will continue its

efforts to make CIAP funds available as soon as possible in the FFY.

Application process. Comment: PHADA suggested that a general format

[[Page 8715]]

should be developed by HUD to assist small HAs gather the information

being requested. Response: The CIAP Application form (HUD-52822)

provides a format for HAs to record their physical and management

improvement needs. The Department believes that any other format may be

burdensome to small HAs. The Department is open to the development of

guidance material which may be helpful to small HAs and welcomes

specific suggestions.

Replacement estimate for equipment, systems or structural elements.

Comment: PHADA and two HAs questioned why the CIAP Application required

identification of a cost estimate for the equipment, systems or

structural elements which would normally be replaced over the remaining

period of the Annual Contributions Contract (ACC) or during the 30-year

period beginning on the date of submission of the application.

Response: This was a burdensome statutory requirement from which HUD

sought legislative relief. A technical amendment to section 14(d)(2) of

the Act, was signed into law on April 11, 1994 (Pub. L. 103-233, 108

Stat. 369). Accordingly, the Department has eliminated this requirement

on Form HUD-52822, CIAP Application.

Application requirements for management improvements. Comment:

PHADA requested simplification of the application requirements for

management improvements. Response: It appeared to PHADA that the

regulation at Secs. 950.610(g)(2)(i) and 968.215(c)(2) required a

general recital of the management and administrative capabilities of

the HA. In order to clarify that such items were only examples of

eligible management improvements, the items have been moved to the

eligible costs section at Secs. 950.608(g)(2)(i) and 968.112(g)(2)(i).

Development deficiencies. Comment: PHADA pointed out a possible

problem with Secs. 950.618(e)(1)(ii) and 968.215(e)(1)(ii). Each

development for which work is proposed must be at least three years old

from the end of the initial operating period (EIOP). Since warranties

are generally one year and some builders may go bankrupt, PHADA asked

for relief to be provided for the unusual circumstance in which early

assistance from CIAP is required. Such relief would be simpler than

having to come to the Assistant Secretary for Public and Indian Housing

for a regulatory waiver. Response: In order to make the CIAP consistent

with the CGP, the Department has changed the threshold for development

eligibility from EIOP to Date of Full Availability (DOFA) and under ACC

at Secs. 968.210(e)(1) and 950.630(e)(1). However, the Department

stresses that the first avenue of correction of a development

deficiency is from the architect or contractor, as appropriate. Where

there is no approved actual development cost certificate (ADCC), HUD

will continue to look to development funds first to correct the

development deficiency; if development funds are not available, the

Field Office may approve use of CIAP funds for correction, without

Headquarters approval. Once there is an approved ADCC, any subsequently

identified development deficiency may be funded by CIAP funds.

Eligibility review. Comment: PHADA was concerned about a situation

where an HA is improperly managed and may be found to be ineligible

under the regulatory criteria even if a new executive director or key

staff member has been employed and is sincerely trying to correct the

HA's problems. PHADA thought this situation may require a waiver of the

eligibility criteria at Secs. 950.618(e) or 968.215(e). Response: HUD

disagrees with that interpretation and refers the commenter to the

revised definitions of modernization and management capability found in

Secs. 968.205 and 950.102. A Troubled PHA shall be considered for

funding of non-emergency improvements where it is making reasonable

progress toward meeting the performance targets established in its

memorandum of agreement (or equivalent) or has obtained alternative

oversight of its management functions. The Field Office shall determine

whether the HA has a reasonable prospect of acquiring management or

modernization capability through CIAP-funded management improvements

and administrative support, such as hiring staff or contracting for

assistance.

Technical review factors. Comment: PHADA and two HAs questioned if

the technical review factors are relevant for CIAP, considering the

size of the HAs participating in CIAP. Specifically, items 5, 6, and 7

which deal with resident involvement, initiatives, and employment are

difficult for many small HAs. While PHADA was not opposed to these

items in theory, it was concerned about their practicality. PHADA

suggested reexamination of these technical review factors since small

HAs find it is very difficult to get residents involved and the

opportunities for resident employment with the HA are severely limited.

NAHRO stated that the degree to which resident programs are operating

is more often a function of fund availability and the type of unit,

elderly or family. Also, in some small towns, the local elected

leadership may be anti-public housing. Item 8 (local government support

for proposed modernization) may prevent improvements needed by the

residents. NAHRO urged that while vacancies are a problem which should

be addressed whenever possible through CIAP, when assigning weights to

this factor, the Department should utilize data from the Vacancy

Reduction Program to ascertain the extent to which modernization needs

are causing vacancies in this size category of HAs. NAHRO indicated

that anecdotal evidence thus far indicates that the vacancies in this

size group are often caused by market conditions or an insufficient

number of applicants, not modernization need.

Response: Section 14(d) of the Act requires CIAP Applications to be

developed in consultation with the appropriate local officials and with

residents of the housing developments for which assistance is

requested; therefore, the technical review factors must, at a minimum,

reflect these requirements. The other factors are a matter of

Secretarial discretion. The Department supports strong resident

involvement in all aspects of the Public or Indian Housing Program.

These technical review factors reflect HUD's goals for the CIAP. HUD

realizes that resident involvement varies depending on the size and

resources of the HA, and those distinctions are considered in scoring

the technical review factors. It also should be noted that the

technical review factor on extent of vacancies has been clarified to

indicate that points will be given only if the vacancies are not due to

insufficient demand.

PHMAP and rating. Comment: PHADA and one HA were concerned about

reinventing CIAP and PHMAP. It was suggested that no PHA should be

rated down in management capability unless there is a failing PHMAP

score or some unusual change occurs at the PHA. Conversely, a low PHMAP

score should be used to increase the chances of needed management

improvements being funded. Response: If a PHA needs CIAP funds for a

management improvement to address a low PHMAP score, it is not

penalized. Again, refer to the revised definition of management

capability in Sec. 968.205.

Application review. Comment: PHADA suggested that an application

should be rejected only on new grounds once. PHADA wanted to avoid

possible endless resubmissions. Response: The Department notes that the

completeness review is not complex and that operating experience has

indicated that only a relatively small number of HAs are required to

correct or resubmit

[[Page 8716]]

documents. HUD cannot overlook deficiencies in HA submissions. Although

HUD will make every effort to provide technical assistance to HAs

before the application deadline date, HAs have a responsibility to

prepare applications which meet HUD requirements.

Debriefing for unsuccessful applications. Comment: PHADA and two

HAs were concerned that too often an HA not receiving the CIAP

assistance it requested is not adequately informed as to why it was not

funded. PHADA requested that the regulation be modified to require a

debriefing for HAs whose applications are not funded so they can

improve their situation for the next funding round. Response: HUD

already requires the Field Office to inform an HA in writing as to why

its application was unsuccessful. This requirement has been included in

the final rule at Secs. 950.630(i) and (j) and 968.210(i) and (j).

Residual receipts. Comment: PHADA and NAHRO noted that an HA will

not be selected for Joint Review if it has residual receipts to carry

out the modernization activities for which it is applying. PHADA, NAHRO

and one HA indicated that residual receipts should be used as long as a

HA is allowed to retain 50 percent of the maximum allowable reserves or

$50,000, whichever is higher. This way, a reasonable amount of reserves

can be used and at the same time the HA is not placed in financial

jeopardy. Response: The Department has eliminated the requirement for

PHAs to remit residual receipts, effective for HAs with fiscal years

beginning on or after January 1, 1995. This change will make the

retention or return of residual receipts a moot issue since there will

no longer be funds identified as residual receipts and no provision on

residual receipts in the rule. Accordingly, the Department has

eliminated the provision in Sec. 968.210(i) regarding non-selection for

Joint Review where the PHA has residual receipts.

Contracting and budget revisions approvals. Comment: PHADA, NAHRO

and one HA disagreed with HUD's approval procedures for contracting and

budget revisions. They suggested that these situations could be

modified so that if HUD does not act on an HA's submission within 15

calendar days, it is automatically approved and the project can

proceed. NAHRO requested that HUD clarify the processes to be used by

Field Offices in establishing more frequent reporting or more stringent

requirements related to thresholds or prior HUD approval. NAHRO urged

that PHMAP should be used and cross referenced here. Response: Field

Offices are required to establish thresholds as high as possible to

give CIAP agencies flexibility while protecting HUD's interests in the

contracting area. These thresholds are based on an HA's in-house

technical capability and past performance. The revised CIAP Handbook

will establish time frames for Field Office review and action on

documents which must be submitted for prior HUD approval. The

Department will continue to urge Field Offices to respond in a timely

manner, including use of form letters, where appropriate, and to

monitor Field Office performance in this area.

The Department has streamlined the requirements regarding budget

revisions by requiring that a budget revision be submitted for prior

HUD approval only where an HA plans to deviate from the competitively

funded modernization program. Prior HUD approval is not required for

revisions that are consistent with, and necessary to, completion of the

original modernization program. The regulation also clarifies that

modernization funds may not be used for developments that are not

covered by the original CIAP application, even where there are leftover

funds remaining after the originally approved modernization program has

been completed. See Secs. 968.225 and 950.634.

Modernization coordinator or contract administrator. Comment: PHADA

seeks appeal rights whenever HUD requires an HA to hire a modernization

coordinator or contract administrator in order to receive the CIAP

grant. PHADA considers this to be justified in certain cases, but urges

that the regulation specifically allow the HA to appeal this to the

Regional Administrator and also be informed specifically why HUD feels

this is necessary. PHADA suggest that if these modifications are not

made, this provision could be abused by some due to petty personal

differences. NAHRO suggested that the Department establish in PHMAP the

requirements or conditions for HAs who have performed poorly in the

past. Additionally, NAHRO suggested that if the Field Office requires a

contract administrator, the HA must be notified at Joint Review. This

practice would give the HA the opportunity to protest, or if there is

agreement, the time to search for one who can take over immediately

following the execution of the ACC.

Response: It has been the Department's experience that some smaller

HAs do not have in-house capacity to administer the CIAP and require

administrative and technical assistance to implement their approved

programs. The Department must be assured that approved programs will be

carried out in an economical and effective manner. During Joint Review,

the Field Office will discuss with the HA the type and amount of

administrative and technical assistance which it may need during

implementation of its CIAP program. However, such needs may not be

finalized until the scope of work and amount of funding are determined

after Joint Review. The Field Office has the final determination on

this matter.

Force account. Comment: PHADA and two HAs recommended that

Secs. 950.635(a) and 968.225(a) be changed to allow HAs to use force

account labor to carry out modernization in all cases except where it

is specifically forbidden. Response: To provide a reward for high-

performing HAs and to achieve consistency with the CGP, the Department

has eliminated prior HUD approval for use of force account labor by

PHAs that are designated as both over-all high performers and mod-high

performers under the PHMAP and by all IHAs. See Secs. 950.612(a) and

968.120(a). PHAs that are not both over-all high performers and mod-

high performers will continue to obtain prior HUD approval to use force

account labor through their CIAP budgets or budget revision

submissions. The Field Office will approve or disapprove such use as

part of the budget/budget revision approval process.

Modernization priorities. Comment: Following the CGP model, PHADA

urged HUD to respect an HA's priorities and only modify the priorities

after the HA agrees to the modification. Response: The key difference

between CIAP and CGP is that CIAP is a competitive, not a formula,

program. Although HUD does not set priorities for HAs in either

program, HUD must assess the relative extent and urgency of need among

CIAP agencies in rating and ranking the CIAP Applications.

Comparability with CGP. Comment: NAHRO noted that the CIAP is now

similar in many respects to the CGP. It encouraged HUD to strive for

comparability between the two programs on the issue of technical

review. Response: Except for statutory differences, the Department has

made every attempt to make the CIAP comparable to the CGP.

Formula approach. Comment: PHADA and one HA requested HUD to

examine whether the competitive CIAP process could be replaced by a CGP

formula distribution. Response: As part of HUD's reinvention, the

Department has proposed to the Congress the establishment of a Capital

Fund in the first stage of transforming public and Indian housing. The

Capital Fund

[[Page 8717]]

would replace both the existing CIAP and CGP programs and provide

formula funding to all HAs, regardless of size. In FFY 1995, the 904

CGP agencies were eligible to receive 89 percent of the available funds

and the 2,496 CIAP agencies were eligible to receive 11 percent of the

available funds.

Board Resolution. Comment: NAHRO questioned the HUD requirement for

the Board of Commissioners to certify that the budget, implementation

schedule or other documents are accurate and complete. It was suggested

that the Board should be able to delegate responsibility to the

Executive Director to make certain certifications on behalf of the HA.

Accountability could be achieved by the fact that the Executive

Director is accountable to the Board. Response: HUD requires that,

after an HA is selected for funding, the HA submit the Board Resolution

Approving the CIAP Budget, Form HUD-52820, with the CIAP budget and

other required documents. The Board resolution does not require

certification as to the accuracy and completeness of the budget,

including the implementation schedule, and other documents. The Board

resolution does contain various certifications and agreements regarding

HA compliance with HUD policies, procedures, requirements, regulations

and Federal statutes. The Department is willing to accept the

certification by the Executive Director, in lieu of the Board, in these

matters, where the Executive Director has been delegated this authority

by the Board and is permitted to do so under State law.

B. Description of Simplified CIAP

This final rule continues the simplification of the CIAP, as set

forth in the interim rule, in the areas of HA application requirements,

modernization types, application processing and implementation. The

final rule provides increased efficiency, reduces unnecessary

requirements, and provides new flexibility for both the participating

HAs and HUD. The changes to CIAP are the same for both Public and

Indian housing, with the exception of the Mutual Help Program. Many of

these changes are the result of recent meaningful dialogue with small

HAs and experience gained through administering CIAP.

C. Simplification of Procedures for Obtaining Approval of a

Modernization Program

Previously, the process for receiving CIAP funds involved multiple

steps. This final rule continues the approach set forth in the interim

rule regarding the elimination, combination or simplification of many

of those previous requirements.

HUD expects that after modernization funds for a particular Federal

Fiscal Year become available, HUD would continue to publish in the

Federal Register a NOFA and the time frame for submission for

applications. HUD currently publishes an annual CIAP NOFA for this

purpose and, in the last two years, the CIAP NOFA has been

significantly improved to describe clearly submission requirements,

available amounts, eligibility, technical review factors, application

processing, Joint Review selections, and funding decisions. The

improvements to the CIAP NOFA also are intended to promote fair

competition in the program.

This final rule establishes the following steps for obtaining

approval of a modernization program: (1) application submission by the

HA; (2) completeness review by HUD; (3) eligibility review by HUD; (4)

technical review, including rating and ranking, by HUD; and (5) Joint

Review by HUD and the HA; (6) funding decisions by HUD; (7) budget

submission by HA; and (8) ACC amendment. Based on actual operating

experience in FFYs 1993, 1994, and 1995, processing time was

significantly reduced.

The first step for obtaining a CIAP grant is the application

submission by the HA. As previously noted, the requirement to provide a

cost estimate for the replacement of equipment, systems or structural

elements over a 30-year period is no longer mandated by the statute and

has been eliminated.

An HA has the option of including only the specific developments

for which it is requesting funding or of including all its developments

in the CIAP Application. The consequences of not including all its

developments in the CIAP Application are that HUD may not, as a result

of Joint Review, consider funding of any non-emergency work at excluded

developments or subsequently approve use of leftover funds at excluded

developments. The benefits derived from including all its developments

are the ability to: (1) revise specific work items among developments

at Joint Review; and (2) use leftover funds upon completion of the

modernization for modernization needs at other developments covered by

the application. An HA must evaluate and describe its modernization

needs and the estimated costs for each development covered by the

application.

HUD will ensure that documentation and other information regarding

each application submitted pursuant to the CIAP NOFA are sufficient to

indicate the basis upon which assistance was provided or denied. This

material, including any letters of support, will be made available for

public inspection for a five-year period beginning not less than 30

calendar days after the award of the assistance. Material will be made

available in accordance with the Freedom of Information Act (5 U.S.C.

552) and HUD's implementing regulation at 24 CFR part 15. In addition,

HUD will include the recipients of assistance pursuant to the CIAP NOFA

in its quarterly Federal Register notice of all recipients of HUD

assistance awarded on a competitive basis. (See 24 CFR Secs. 12.14(a)

and 12.16(b), and the notice published in the Federal Register on

January 16, 1992 (57 FR 1942), for further information on these

requirements.)

The second step for obtaining a CIAP grant is the completeness

review by HUD. The final rule clarifies that if the CIAP Application

(Form HUD-52822) or any other essential document, as specified in the

NOFA, is missing, the HA's application will be considered substantially

incomplete and, therefore, ineligible for further processing. If there

is a technical mistake, such as no signature on a submitted form, the

HA will be given an opportunity to correct the deficiency. This is not

additional time to substantially revise the application. Deficiencies

that may be corrected at this time are inadvertently omitted documents,

as specified in the NOFA, or clarifications of previously submitted

material and other changes which are not of such a nature as to improve

the competitive position of the application. In addition, the final

rule clarifies that if the HA does not correct the deficiency within

the specified time period, the HA is ineligible for further processing.

The third step for obtaining a CIAP grant is the eligibility review

by HUD. Based on operating experience in FFYs 1993, 1994, and 1995, the

Department has made the following changes from the interim rule:

(1) Eliminated work item eligibility and need which may be

difficult to determine before Joint Review;

(2) Changed the requirement that each development on which work is

proposed be at least three years old from the End of Initial Operating

Period (EIOP) to a requirement that each development must have reached

the Date of Full Availability (DOFA) and be under ACC. Also, clarified

the eligibility of a development/building/unit assisted with Major

Reconstruction of Obsolete Projects (MROP) funding, under section

[[Page 8718]]

5(j)(2) of the Act (see Section F of this Preamble). These changes make

development eligibility under the CIAP consistent with the CGP;

(3) Eliminated the restriction on processing where the HA has not

submitted the fiscal audit to HUD within one year after the end of the

audit period, or requested an extension for submission, in conformance

with the Single Audit Act requirements. The Department has decided to

use regular monitoring as a more effective method of obtaining audit

compliance rather than eliminating the HA up-front from full funding

consideration;

(4) Eliminated the restriction on processing where the HA owes

funds to the Department as a result of excess development,

modernization or operating funds previously provided and the HA has not

repaid the funds, or has not entered into a repayment agreement, or is

not meeting its obligations under a repayment agreement. The Department

has decided to use regular monitoring as a more effective method of

obtaining funds owed to the Department rather than eliminating the HA

up-front from full funding consideration;

(5) Where the HA has not completed the structural changes

identified by the Section 504 Needs Assessment, added the restriction

on processing to Emergency Modernization or physical work needed to

meet Section 504 requirements;

(6) Where the HA has not complied with the statutory requirement to

complete Lead Based Paint (LBP) testing on all pre-1978 family units,

added the restriction on processing to Emergency Modernization or work

needed to complete LBP testing; and

(7) Where the HA has not complied with Fair Housing and Equal

Opportunity (FHEO) requirements, continued the restriction on

processing to Emergency Modernization or work needed to remedy civil

rights deficiencies.

The fourth step for obtaining a CIAP grant is technical review by

HUD. The Department is retaining the provisions of the interim rule

regarding technical processing, categorizing the eligible HAs and their

developments into two processing groups (Group 1 for Emergency

Modernization and Group 2 for Other Modernization), and rating and

ranking of applications in Group 2. Preference is given to all HA

applications in Group 1 since such applications involve emergencies

which are an immediate threat to resident health or safety.

Accordingly, such applications are not rated and ranked during

technical processing and are automatically selected for Joint Review.

The Field Office rates the Group 2 HAs/developments against the

technical review factors to determine relative ranking. In accordance

with section 14(h) of the Act, the Department will continue the

preference given to HAs which request assistance for developments

having conditions which threaten the health or safety of the residents

or having a significant number of vacant, substandard units, and which

have demonstrated a capability of carrying out the proposed activities.

This preference is reflected in the technical review factors and their

maximum point scores.

The final rule recognizes the change in the Department's field

structure by eliminating reference to the Regional Office. Since each

Field Office receives its own allocation of CIAP funds, the Field

Office will proceed to Joint Review selection after rating and ranking.

The Field Office will identify for selection the highest ranking HA

applications in Group 2 in descending order, and other Group 2 HAs with

lower ranking applications but with high priority needs which most

reasonably approximate the amount of modernization which can be funded

by the Field Office. High priority needs are non-emergency needs, but

related to: health or safety; vacant, substandard units; structural or

system integrity; or compliance with statutory, regulatory or court-

ordered deadlines. Again, all Group 1 applications will be

automatically selected for Joint Review.

The fifth step for obtaining a CIAP grant is Joint Review. The

purpose of Joint Review is for the Field Office to discuss with an HA

the proposed modernization program, as set forth in the application,

and determine the size of the grant, if any, to be awarded. The Field

Office will notify those HAs whose applications have been selected for

further processing as to whether the Joint Review will be conducted on-

site or off-site (e.g., by telephone or in-office meeting). If

conducted on-site, the Joint Review may include an inspection of the

proposed physical work. An HA will prepare for Joint Review by

preparing a draft CIAP budget and reviewing the other items to be

covered during Joint Review, as prescribed by HUD. The Field Office

will review long-term viability and reasonable cost determinations

during Joint Review.

HAs not selected for Joint Review will be notified by letter

stating the reasons, such as the low priority of its physical

improvement needs relative to available funding. If, prior to

scheduling the Joint Reviews, there is determined to be a duplication

of funding, the HA will not be selected for Joint Review. Where a

duplication of funding is determined during Joint Review, the HA will

not be selected for funding.

The sixth and seventh steps for obtaining a CIAP grant are funding

decisions by HUD and budget submission by the HA. Upon completion of

Joint Review, the Field Office will adjust the HAs/developments and

work items to be funded and the amounts to be awarded, including

processing groups, as necessary, based on information obtained at Joint

Review, the results of FHEO review, and completion of the environmental

reviews. After Congressional notification, the Field Office will

announce the HAs selected for CIAP grants, subject to their submission

of an approvable CIAP budget and other required documents. The Field

Office will request the funded HA to submit a CIAP budget, which

includes an implementation schedule, a resolution by the HA Board of

Commissioners containing certifications required by HUD, and any other

required documents. The Field Office will select all bona fide

emergencies in Group 1 for funding before funding Group 2 applications.

HAs not selected for funding will be notified in writing of the reason

for non-selection.

After Field Office approval of the CIAP budget, the eighth step for

obtaining a CIAP grant is that the Field Office and the HA enter into

an ACC Amendment in order for the HA to obtain modernization funds. The

ACC Amendment will require 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). It should

be noted that HUD has the authority to condition the ACC Amendment

(e.g., to require an HA to hire a modernization coordinator or contract

administrator to administer its modernization program).

The final rule continues the streamlined ACC Amendment process by

allowing Field Office program staff to complete and forward the ACC

Amendment to the HA with the budget approval letter, and by allowing

the HA Executive Director, where authorized by the Board and permitted

by State law, to sign and return the ACC Amendment to the Field Office

for execution. This is identical to the ACC Amendment process in the

CGP. Excluding Mutual Help developments, an HA also will, where

necessary, execute and file for record a Declaration of Trust, as

provided under the ACC, to protect the rights and interests of HUD

throughout

[[Page 8719]]

the 20-year period during which the HA is obligated to operate the

developments receiving modernization funds in accordance with the ACC,

the Act, and HUD regulations and requirements.

D. Other Simplifications and Revisions to CIAP

When the revised CGP final rule was published on August 30, 1994,

at 59 FR 44810, the Department eliminated the requirement that the cost

of non-emergency health and safety work items increase the purchase

price and amortization period for Turnkey III or Mutual Help homebuyer

families. This requirement already was eliminated for the CGP and CIAP

at Secs. 950.602 and 968.102.

CIAP agencies shall administer previously approved CIAP grants

under this final rule. It would be problematic for both HUD and CIAP

agencies to administer CIAP programs in progress under differing

requirements. HUD will continue to allow revisions to previously

approved CIAP budgets, where appropriate.

E. Major Reconstruction of Obsolete Projects (MROP)

Section 111(b) of the Housing and Community Development Act of 1992

amended section 14(c) of the Act and provided that a building which is

assisted with MROP funding (under section 5(j)(2) of the Act) is not

eligible for CIAP funding. This statutory provision was implemented in

the interim rule at Sec. 968.101(b)(5). To provide further

clarification, Sec. 968.101(b)(5) is revised in the final rule to

clarify that a development/building/unit is eligible for CIAP funding

where it was funded under MROP after FFY 1988 and has reached DOFA or

where it was funded under MROP during FFYs 1986-1988 and all MROP funds

have been expended.

F. Long-Term Viability

The final rule clarifies at Secs. 905.608(b) and 968.112(b) that

HAs may expend funds on a non-viable development for essential non-

routine maintenance needed to keep the property habitable until the

demolition or disposition application is approved and residents are

relocated.

G. Previous Participation

On June 20, 1994, the Department published at 59 FR 31521, an

interim rule, which eliminated the requirement for HAs to submit Form

HUD-2530, Previous Participation Certificate, on modernization

contracts. Accordingly, Secs. 950.642(d)(3) and 968.235(d)(3),

requiring previous participation clearance, have been eliminated and

Secs. 950.642(g) (now 950.618) and 968.235 (now 968.135) have been

modified to delete reference to previous participation.

H. Time Extensions

The Department has added new Secs. 950.638 and 968.235 to specify

requirements regarding time extensions to the obligation or expenditure

deadline date approved by HUD in the original implementation schedule.

HUD approves implementation schedules as part of the budget approval

process (refer to Part III of the CIAP budget). The Department is

allowing CIAP agencies to execute (as CGP agencies now are authorized

to do), without prior HUD approval, time extensions commensurate with

the delay no later than 30 calendar days after the obligation or

expenditure deadline date where the HA is able to certify that the

delay is due to reasons outside of the HA's control, such as the need

to use leftover funds from a completed modernization program for

additional work, unforeseen delays in contracting or contract

administration, litigation, and HUD or other institutional delay. Where

the delay is not due to reasons outside of the HA's control, the HA

must request HUD approval of a time extension no later than 30 calendar

days after the obligation or expenditure deadline date to avoid

recapture of funds.

I. Threshold for Performance and Payment Bond for CGP Agencies

The Department's procurement regulations, as set forth in 24 CFR

85.36(h), require that HA contractors furnish a bid guarantee and a

performance bond and payment bond for each construction or equipment

contract over $100,000. For the CIAP and the CGP, the Department had

reduced that threshold from $100,000 to $25,000 in order to protect the

Federal interest. The Department has reconsidered this matter and has

raised the threshold from $25,000 to $100,000 for both CIAP and CGP

agencies at Secs. 950.618(b) and 968.135(b). The Department

inadvertently omitted the requirement of the bid guarantee when it

reduced the threshold for the performance and payment bonds and has

included it with this rule. In addition, the Department is continuing

its policy of allowing for both CGP and CIAP agencies two other

alternative methods of assurance to performance and payment bonds,

which are a twenty percent cash escrow or a twenty-five percent letter

of credit.

VI. Findings and Certifications

Environmental Impact

A Finding of No Significant Impact with respect to the environment

has been made in accordance with HUD regulations at 24 CFR part 50

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

Act of 1969, 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, SW., Washington, DC

20410.

Federalism Impact

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

of Executive Order 12612, Federalism, has determined that the rule does

not have substantial, direct effects on HAs. The revised modernization

program is consistent with federalism principles since it reduces

unnecessary burdens on HAs. While the program is revised, the primary

change is only in the way that HUD processes and reviews HA

modernization activities, and not the modernization activities

themselves. This rule will not diminish the importance of State and

local governments with respect to the Federal Government. As a result,

the rule is not subject to review under the order.

Impact on the Family

This rule has been developed in accordance with Executive Order

12606, the Family. The General Counsel, as the Designated Official

under the Executive Order, has determined that this rule does not have

the potential for significant impact on family formation, maintenance,

or general well-being, since its effect is limited to revising program

procedures for HAs applying for discretionary grants. Families are not

affected since HAs will continue to carry out modernization activities

at public housing developments.

Regulatory Flexibility Act

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

U.S.C. 605(b)) has reviewed and approved this rule, and in so doing

certifies that this rule will not have a significant economic impact on

a substantial number of small entities. The rule codifies revisions to

the existing CIAP under which HAs receive modernization assistance from

HUD on a competitive basis. HUD does not anticipate a significant

economic impact on small entities since HAs will continue to carry out

their modernization activities by entering

[[Page 8720]]

into contracts for the work as they now do.

Catalog of Domestic Assistance

The Catalog of Domestic Assistance numbers for the programs

affected by this rule are 14.146, 14.147, 14.850, 14.851, 14.852, and

15.141.

List of Subjects

24 CFR Part 941

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

housing and community development, Public housing.

24 CFR Part 950

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

programs--Indians, Indians, Individuals with disabilities, Low and

moderate income housing, Public housing, Reporting and recordkeeping

requirements.

24 CFR Part 965

Energy conservation, Government procurement, Grant programs--

housing and community development, Lead poisoning, Loan programs--

housing and community development, Public housing, Reporting and

recordkeeping requirements, Utilities.

24 CFR Part 968

Grant programs--housing and community development, Indians, Loan

programs--housing and community development, Public housing, Reporting

and recordkeeping requirements.

For the reasons set forth in the preamble, parts 941, 950, 965, and

968 of title 24 of the Code of Federal Regulations are amended as

follows:

PART 941--PUBLIC HOUSING DEVELOPMENT

1. The authority citation for 24 CFR part 941 continues to read as

follows:

Authority: 42 U.S.C. 1437b, 1437c, 1437g, and 3535(d).

2. In Sec. 941.208, paragraph (c) is revised to read as follows:

Sec. 941.208 Other Federal requirements.

* * * * *

(c) Prevailing wage rates. See part 965 of this chapter for

applicable requirements on this subject.

* * * * *

3. In Sec. 941.503, paragraph (d) is revised to read as follows:

Sec. 941.503 Construction requirements.

* * * * *

(d) Prevailing wage rates. See Sec. 965.101 of this chapter.

PART 950--INDIAN HOUSING PROGRAMS

4. The authority citation for 24 CFR part 950 continues to read as

follows:

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

3535(d).

5-6. Section 950.102 is amended by adding a definition of ``other

modernization (modernization other than emergency)'' in alphabetical

order, and by revising the definitions of ``emergency modernization'',

``modernization capability'', and ``modernization project'', to read as

follows:

Sec. 950.102 Definitions.

* * * * *

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

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

nature, that pose an immediate threat to the health or safety of

residents or is related to fire safety, and that must be corrected

within one year of CIAP funding approval.

* * * * *

Modernization capability. An IHA has modernization capability if it

is:

(1) Not designated as high risk under Sec. 950.135; or

(2) Designated as high risk, but has a reasonable prospect of

acquiring modernization capability through CIAP-funded management

improvements and administrative support, such as hiring staff or

contracting for assistance. An IHA that has been classified high risk

with regard to modernization is eligible for emergency modernization

only, unless it is making reasonable progress toward meeting the

performance targets established in its management improvement plan

under Sec. 950.135(f)(2) or has obtained alternative oversight of its

modernization functions. Where an IHA does not have a funded

modernization program in progress, the Area ONAP shall determine

whether the IHA has a reasonable prospect of acquiring modernization

capability through hiring staff or contracting for assistance.

* * * * *

Modernization project. The improvement of one or more existing

Indian housing developments under an unique 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).

* * * * *

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

modernization program 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 development specific

or IHA-wide management work items (including planning costs), and/or

LBP testing, professional risk assessments, interim containment, and

abatement.

* * * * *

7. Subpart I of Part 950, is revised to read as follows:

Subpart I--Modernization Program

General Provisions

Sec.

950.600 Purpose and applicability.

950.602 Special requirements for Turnkey III and Mutual Help

developments.

950.604 Allocation of funds under section 14.

950.606 Reserve for emergencies and disasters.

950.608 Eligible costs.

950.610 Modernization and energy conservation standards.

950.612 Force account.

950.614 Initiation of modernization activities.

950.616 Fund requisition.

950.618 Contracting requirements.

950.620 On-site inspections.

950.622 Fiscal closeout.

Comprehensive Improvement Assistance Program (For IHAs That Own or

Operate Fewer Than 250 Indian Housing Units)

950.630 Procedures for obtaining approval of a modernization

program.

950.632 Resident and homebuyer participation.

950.634 Budget revisions.

950.636 Progress reports.

950.638 Time extensions.

950.640 HUD review of IHA performance.

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

Indian Housing Units)

950.650 Determination of formula amount.

950.652 Comprehensive plan (including Five-Year Action Plan).

950.654 HUD review and approval of comprehensive plan (including

Five-Year Action Plan).

950.656 Annual submission of activities and expenditures.

950.658 IHA Performance and Evaluation Report.

950.660 HUD review of IHA performance.

[[Page 8721]]

Subpart I--Modernization Program

General Provisions

Sec. 950.600 Purpose and applicability.

(a) Purpose. The purpose of this subpart is to set forth the

policies and procedures for the Modernization program, authorizing HUD

to provide financial assistance to Indian Housing Authorities (IHAs).

(b) Applicability. (1) The sections under the undesignated heading

``General Provisions'' apply to all modernization under this subpart.

The sections under the undesignated heading ``Comprehensive Improvement

Assistance Program'' (CIAP) set forth the requirements and procedures

for the CIAP for IHAs that own or operate fewer than 250 Indian housing

units. An IHA that qualifies for participation in the Comprehensive

Grant Program (CGP) is not eligible to participate in the CIAP. The

sections under the undesignated heading ``Comprehensive Grant program

(CGP)'' set forth the requirements and procedures for the CGP for IHAs

that own or operate 250 or more Indian housing units. An IHA that has

already qualified to participate in the CGP remains eligible to

participate in the CGP so long as it owns or operates at least 200

units.

(2) This subpart applies to IHA-owned low-income Indian housing

developments (including developments managed by a Resident Management

Corporation pursuant to a contract with the IHA). This subpart also

applies to the implementation of modernization programs which were

approved before FFY 1996. Rental developments that are planned for

conversion to homeownership under sections 5(h), 21, or 301 of the Act

(42 U.S.C. 1437c, 1437s, 1437aaa), but that have not yet been sold by

an IHA, continue to qualify for assistance under this subpart. This

subpart does not apply to developments under the Section 23 Leased

Housing Non-Bond Financed program, the Section 10(c) Leased program, or

the Section 23 or Section 8 Housing Assistance Payments programs.

(c) Transition. Any amount that HUD has obligated to an IHA shall

be used for the purposes for which the funding was provided, or:

(1) For a CGP IHA, for purposes consistent with an approved annual

statement or five-year action plan submitted by the IHA, as the IHA

determines to be appropriate; or

(2) For a CIAP IHA, in accordance with a revised CIAP budget under

Sec. 950.634.

(d) Other applicable requirements. See subpart A of this part for

applicable requirements, other than the Act, that apply to

modernization under this subpart I.

(e) Approved information collections. The following sections of

this subpart have been approved by the Office of Management and Budget

in accordance with the Paperwork Reduction Act of 1995 and assigned OMB

approval number 2577-0044: Secs. 950.618, 950.622, 950.630, 950.632,

950.634, and 950.636. The following sections of this subpart have been

similarly approved and assigned approval number 2577.0157:

Secs. 950.650, 950.656, and 950.658.

Sec. 950.602 Special requirements for Turnkey III and Mutual Help

developments.

(a) Modernization costs. Modernization work on a Mutual Help or

Turnkey III unit shall not increase the purchase price or amortization

period of the home.

(b) Eligibility of paid-off and conveyed units for assistance. (1)

Paid-off units. A Mutual Help or Turnkey III unit that is paid off but

has not been conveyed at the time work is included for it in the CIAP

application or CGP Annual Statement is eligible for any physical

improvements provided under Sec. 950.608. However, in accordance with

the provisions of Sec. 950.440(e)(8), an IHA may perform nonemergency

work on a paid-off Mutual Help unit only after all delinquencies are

repaid.

(2) Conveyed units. Where modernization work has been approved

prior to conveyance, the IHA may complete the work even if title to the

unit is subsequently conveyed before the work is completed. However,

once conveyed, the unit is not eligible for additional or future

assistance. An IHA shall not use funds provided under this subpart for

the purpose of modernizing units if the modernization work was not

approved before conveyance of title.

(c) Other. The homebuyer family shall be in compliance with its

financial obligations under its homebuyer agreement in order to be

eligible for nonemergency physical improvements, with the exception of

work necessary to meet statutory and regulatory requirements (e.g.,

accessibility for disabled persons, lead-based paint testing, interim

containment, professional risk assessment, and abatement) and the

correction of development deficiencies. Notwithstanding the above

requirement, an IHA may, with prior HUD approval, complete nonemergency

physical improvements on any homeownership unit if the IHA demonstrates

that, due to economies of scale or geographic constraints, substantial

cost savings may be realized by completing all necessary work in a

development at one time.

Sec. 950.604 Allocation of funds under section 14.

(a) General. This section describes the process for allocating

modernization funds to the aggregate of IHAs and PHAs participating in

the CIAP (i.e., agencies that own or operate fewer than 250 units), and

to individual IHAs and PHAs participating in the CGP (i.e., agencies

that own or operate 250 or more units). The program requirements

governing PHA participation in the CIAP and CGP are contained in 24 CFR

part 968.

(b) Set-aside for emergencies and disasters. For each FFY, HUD

shall reserve from amounts approved in the appropriation act for grants

under this part and part 968 of this title, an amount not to exceed $75

million (which shall include unused reserve amounts carried over from

previous FFYs), which shall be made available to IHAs and PHAs for

modernization needs resulting from natural and other disasters, and

from emergencies. HUD shall replenish this reserve at the beginning of

each FFY. Any unused funds from previous years may remain in the

reserve until allocated. The requirements governing the reserve for

disasters and emergencies and the procedures by which an IHA may

request such funds are set forth in Sec. 950.606.

(c) Set-aside for credits for mod troubled PHAs under 24 CFR part

968, subpart C. (1) General. After deducting amounts for the reserve

for natural and other disasters and for emergencies under paragraph (b)

of this section, HUD shall set aside no more than five percent of the

remaining amount for the purpose of providing credits to PHAs under 24

CFR part 968, subpart C that were formerly designated as mod troubled

agencies under the Public Housing Management Assessment Program (PHMAP)

at 24 CFR part 901. The purpose of this set-aside is to compensate such

PHAs for amounts previously withheld by HUD because of their prior

designation as a mod troubled agency.

(2) Nonapplicability to IHAs. Since the PHMAP performance

indicators under 24 CFR part 901 do not apply to IHAs, these agencies

cannot be deemed mod troubled for purposes of the CGP. Hence, IHAs are

not subject to any reduction in funding under section 14(k)(5)(a) of

the Act, nor do they participate in the set-aside of credits

established under paragraph (c)(1) of this section.

(d) Formula allocation based on relative needs. After determining

the

[[Page 8722]]

amounts to be reserved under paragraphs (b) and (c) of this section,

HUD shall allocate the amount remaining pursuant to the formula set

forth in paragraphs (e) and (f) of this section, which are designed to

measure the relative backlog and accrual needs of IHAs and PHAs.

(e) Allocation for backlog needs. HUD shall allocate half of the

formula amount under paragraph (d) of this section based on the

relative backlog needs of IHAs and PHAs, as follows:

(1) Determination of backlog need. (i) Statistically reliable data.

Where HUD determines that the data concerning the categories of backlog

need identified under paragraph (e)(4) of this section are

statistically reliable for individual IHAs and PHAs with 250 or more

units, or the aggregate of IHAs and PHAs with fewer than 250 units not

participating in the formula funding portion of the modernization

program, it will base its allocation on direct estimates of the

statutory categories of backlog need, based on the most recently

available, statistically reliable data.

(ii) Statistically reliable data are unavailable. Where HUD

determines that statistically reliable data concerning the categories

of backlog need identified under paragraph (e)(4) of this section are

not available for individual IHAs and PHAs with 250 or more units, it

will base its allocation of funds under this section on estimates of

the categories of backlog need using:

(A) The most recently available data on the categories of backlog

need under paragraph (e)(4) of this section;

(B) Objectively measurable data concerning the following IHA or

PHA, community, and development characteristics:

(1) The average number of bedrooms in the units in a development

(Weighted at 2858.7);

(2) The proportion of units in a development available for

occupancy by very large families (Weighted at 7295.7);

(3) The extent to which units for families are in high-rise

elevator developments (Weighted at 5555.8);

(4) The age of the developments, as determined by the DOFA date

(date of full availability). In the case of acquired developments, HUD

will use the DOFA date unless the IHA provides HUD with the actual date

of construction, in which case HUD will use the age of the development

(or for scattered sites, the average age of all the buildings), subject

to a 50 year cap. (Weighted at 206.5);

(5) In the case of a large agency, the number of units with 2 or

more bedrooms (Weighted at .433);

(6) The cost of rehabilitating property in the area (Weighted at

27544.3);

(7) For family developments, the extent of population decline in

the unit of general local government determined on the basis of the

1970 and 1980 censuses (Weighted at 759.5); and

(C) An equation constant of 1412.9.

(2) Calibration of backlog need for developments constructed prior

to 1985. The estimated backlog need, as determined under either

paragraphs (e)(1)(i) or (e)(1)(ii) of this section, shall be adjusted

upward for developments constructed prior to 1985 by a constant ratio

of 1.5 to more accurately reflect the costs of modernizing the

categories of backlog need under paragraph (e)(4) of this section, for

the Indian housing stock as of 1991.

(3) Deduction for prior modernization. HUD shall deduct from the

estimated backlog need, as determined under either paragraphs (e)(1)(i)

or (e)(1)(ii) of this section, amounts previously provided to an IHA or

PHA for modernization, using one of the following methods:

(i) Standard deduction for prior CIAP and MROP. HUD shall deduct 60

percent of the CIAP funds made available on an IHA-wide or PHA-wide

basis from FFY 1984 to 1991, and 40 percent of the funds made available

on a development-specific basis for the Major Reconstruction of

Obsolete Projects (MROP) (not to exceed the estimated formula need for

the development), subject to a maximum 50 percent deduction of an IHA's

or PHA's total need for backlog funding;

(ii) Newly constructed units. Units with a DOFA date of October 1,

1991 or thereafter will be considered to have a zero backlog; or

(iii) Acquired developments. Developments acquired by an IHA with

major rehabilitation, with a DOFA date of October 1, 1991 or

thereafter, will be considered to have a zero backlog.

(4) Categories of backlog need. The most recently available data to

be used under either paragraphs (e)(1)(i) or (e)(1)(ii) of this section

shall pertain to the following categories of backlog need:

(i) Backlog of needed repairs and replacements of existing physical

systems in Indian housing developments;

(ii) Items that shall be added to developments to meet HUD's

modernization standards under Sec. 950.610, and State, local and tribal

codes; and

(iii) Items that are necessary or highly desirable for the long-

term viability of a development, in accordance with HUD's modernization

standards.

(f) Allocation for accrual needs. HUD shall allocate the other half

remaining under the formula allocation under paragraph (d) of this

section based upon the relative accrual needs of IHAs and PHAs,

determined as follows:

(1) Statistically reliable data. If HUD determines that

statistically reliable data are available concerning the categories of

need identified under paragraph (f)(3) of this section for individual

IHAs and PHAs with 250 or more units and for the aggregate of IHAs and

PHAs with fewer than 250 units, it shall base its allocation of

assistance under this section on the needs that are estimated to have

accrued since the date of the last objective measurement of backlog

needs under paragraph (e)(1)(i) of this section; or

(2) Statistically reliable data are unavailable. If HUD determines

that statistically reliable data concerning the categories of need

identified under paragraph (f)(3) of this section are not available for

individual IHAs and PHAs with 250 or more units, it shall base its

allocation of assistance under this section on estimates of accrued

need using:

(i) The most recently available data on the categories of backlog

need under paragraph (f)(3) of this section;

(ii) Objectively measurable data concerning the following IHA or

PHA, community, and development characteristics:

(A) The average number of bedrooms in the units in a development

(Weighted at 100.1);

(B) The proportion of units in a development available for

occupancy by very large families (Weighted at 356.7);

(C) The age of the developments (Weighted at 10.4);

(D) The extent to which the buildings in developments of an agency

average fewer than 5 units (Weighted at 87.1.);

(E) The cost of rehabilitating property in the area (Weighted at

679.1);

(F) The total number of units of each IHA or PHA that owns or

operates 250 or more units (Weighted at .0144); and

(iii) An equation constant of 602.1.

(3) Categories of need. The data to be provided under either

paragraph (f)(1) or (f)(2) of this section shall pertain to the

following categories of need:

(i) Backlog of needed repairs and replacements of existing physical

systems in Indian housing developments; and

(ii) Items that shall be added to developments to meet HUD's

modernization standards under Sec. 950.610, and State, local, and

tribal codes.

(g) Allocation for CIAP. The formula amount determined under

paragraphs (e) and (f) of this section for IHAs and PHAs with fewer

than 250 units shall be allocated to IHAs in accordance with

[[Page 8723]]

the requirements under the undesignated heading of this subpart

``Comprehensive Improvement Assistance Program'' (CIAP) and to PHAs in

accordance with the requirements of 24 CFR part 968, subpart B.

(h) Allocation for CGP. The formula amount determined under

paragraphs (e) and (f) of this section for IHAs with 250 or more units

shall be allocated in accordance with the requirements under the

undesignated heading of this subpart ``Comprehensive Grant Program,''

and for PHAs in accordance with the requirements of 24 CFR part 968,

subpart C. An IHA that is eligible to receive a grant under the CGP may

appeal the amount of its formula allocation under this section in

accordance with the requirements set forth in Sec. 950.650. An IHA that

is eligible to receive modernization funds under the CGP because it

owns or operates 250 or more units, is disqualified from receiving

assistance under the CIAP under this part.

(i) Use of formula allocation. Any amounts allocated to an IHA

under paragraphs (e) and (f) of this section may be used for any

eligible activity under this subpart, notwithstanding that the

allocation amount is determined by allocating half based on the

relative backlog needs and half based on the relative accrual needs of

IHAs and PHAs.

(j) Calculation of number of units. For purposes of determining

under this section the number of units owned or operated by an IHA or

PHA, and the relative modernization needs of IHAs and PHAs, HUD shall

count as one unit each existing rental, Mutual Help, and section 23

Bond-Financed unit under the ACC, except that it shall count as one-

fourth of a unit each existing unit under the Turnkey III program. New

development units that are added to an IHA's or PHA's inventory will be

added to the overall unit count so long as they are under ACC amendment

and have reached DOFA by the first day in the FFY in which the formula

is being run. Any increase in units (reaching DOFA and under ACC

amendment) as of the beginning of the FFY shall result in an adjustment

upwards in the number of units under the formula. New units reaching

DOFA after this date will be counted for formula purposes as of the

following FFY.

(k) Demolition, disposition, and conversion of units. (1) General.

Where an existing unit under an ACC is demolished, disposed of, or

converted into a larger or smaller unit, HUD shall not adjust the

amount the IHA or PHA receives under the formula, unless more than one

percent of the units are affected on a cumulative basis. Where more

than one percent of the existing units are demolished, disposed of, or

converted, HUD shall reduce the formula amount for the IHA or PHA over

a 3-year period to reflect removal of the units from the ACC.

(2) Determination of one percent cap. In determining whether more

than one percent of the units are affected on a cumulative basis, HUD

will compare the units eligible for funding in the initial year under

formula funding with the number of units eligible for funding for the

current year under formula funding, and shall base its calculations on

the following:

(i) Increases in the number of units resulting from the conversion

of existing units will be added to the overall unit count so long as

they are under ACC amendment by the first day in the FFY in which the

formula is being run;

(ii) Units that are lost as a result of demolition, disposition, or

conversion shall not be offset against units subsequently added to an

IHA's or PHA's inventory;

(iii) For purposes of calculating the number of converted units,

HUD shall regard the converted size of the unit as the appropriate unit

count (e.g., a unit that originally was counted as one unit under

paragraph (j) of this section, but which later was converted into two

units, shall be counted as two units under the ACC).

(3) Phased-in reduction of units. (i) Reduction less than one

percent. If HUD determines that the reduction in units under paragraph

(k)(2) of this section is less than one percent, the IHA or PHA will be

funded as though no change had occurred.

(ii) Reduction greater than one percent. If HUD determines that the

reduction in units under paragraph (k)(2) of this section is greater

than one percent, the number of units on which formula funding is based

will be the number of units reported as eligible for funding for the

current program, plus two-thirds of the difference between the initial

year and the current year in the first year, plus one-third of the

difference in the second year, and at the level of the current year in

the third year.

(iii) Exception. A unit that is conveyed under the Mutual Help or

Turnkey III programs will result in an automatic (rather than a phased-

in) reduction in the unit count. Paid-off Mutual Help or Turnkey III

units continue to be counted until they are conveyed.

(4) Subsequent reductions in unit count. (i) Once an IHA's or PHA's

unit count has been fully reduced under paragraph (k)(3)(ii) of this

section to reflect the new number of units under the ACC, this new

number of units will serve as the base for purposes of calculating

whether there has been a one percent reduction in units on a cumulative

basis.

(ii) A reduction in formula funding, based upon additional

reductions to the number of an IHA's or PHA's units, will also be

phased in over a 3-year period, as described in paragraph (k)(2) of

this section.

Sec. 950.606 Reserve for emergencies and disasters.

(a) Emergencies. (1) Eligibility for assistance. An IHA (including

an IHA that is determined to be high risk under Sec. 950.135) may

obtain funds at any time, for any eligible emergency work item as

defined in Sec. 950.102 (for IHAs participating in CGP) or for any

eligible emergency work item (described as emergency modernization in

Sec. 950.102) (for IHAs participating in CIAP), from the reserve

established under Sec. 950.604(b). However, emergency reserve funds may

not be provided to an IHA participating in CGP that has the necessary

funds available from any other source, including its annual formula

allocation under Sec. 950.604(e) and (f), other unobligated

modernization funds, and its replacement reserves under Sec. 950.608.

An IHA is not required to have an approved Comprehensive Plan under

Sec. 950.652 before it can request emergency assistance from this

reserve. Emergency reserve funds may not be provided to an IHA

participating in CIAP unless it does not have the necessary funds

available from any other source, including unobligated CIAP, and no

CIAP modernization funding is available from HUD for the remainder of

the fiscal year.

(2) Procedure. To obtain emergency funds, an IHA shall submit a

request, in a form to be prescribed by HUD, that demonstrates that

without the requested funds from the set-aside under this section, the

IHA does not have adequate funds available to correct the conditions

that present an immediate threat to the health or safety of the

residents. HUD will immediately process a request for such assistance,

and if it determines that the IHA's request meets the requirements of

paragraph (a)(1) of this section, it shall approve the request, subject

to the availability of funds in the reserve.

(3) Repayment. A CGP IHA that receives assistance for its emergency

needs from the reserve under Sec. 950.604(b) shall repay such

assistance from its future allocations of assistance,

[[Page 8724]]

as available. For IHAs participating in the CGP, HUD shall deduct up to

50 percent of an IHA's succeeding year's formula allocation under

Sec. 950.604(e) and (f) to repay emergency funds previously provided by

HUD to the IHA. The remaining balance, if any, shall be deducted from

an IHA's succeeding years' formula allocations.

(b) Natural and other disasters. (1) Eligibility for assistance. An

IHA (including an IHA that has been determined by HUD not to be

administratively capable under Sec. 950.135) may request assistance at

any time from the reserve under Sec. 950.604(b) for the purpose of

permitting the IHA to respond to a natural or other disaster. To

qualify for assistance, the disaster shall pertain to an extraordinary

event affecting only one or a few IHAs, such as an earthquake or

hurricane. Any disaster declared by the President (or that HUD

determines would qualify for a Presidential declaration if it were on a

larger scale) qualifies for assistance under this paragraph. An IHA may

receive funds from the reserve regardless of the availability of other

modernization funds or reserves, but only to the extent its needs are

in excess of its insurance coverage. An IHA is not required to have an

approved Comprehensive Plan under Sec. 950.652 before it can request

assistance from the reserve under Sec. 950.604(b).

(2) Procedure. To obtain funding for natural or other disasters

under Sec. 950.604(b), an IHA shall submit a request, in a form

prescribed by HUD, that demonstrates that it meets the requirements of

paragraph (b)(1) of this section. HUD will immediately process a

request for such assistance, and if it determines that the request

meets the requirements under paragraph (b)(1) of this section, it will

approve the request, subject to the availability of funds in the

reserve.

(3) Repayment. Funds provided to an IHA under paragraph (b)(1) of

this section for natural and other disasters are not required to be

repaid.

Sec. 950.608 Eligible costs.

(a) General. An IHA may use financial assistance received under

this part for the following eligible costs:

(1) For a CGP IHA, the eligible costs are:

(i) Undertaking activities described in its approved Annual

Statement under Sec. 950.656(e) and approved Five-Year Action Plan

under Sec. 950.652(e)(5);

(ii) Carrying out emergency work, whether or not the need is

indicated in the IHA's approved Comprehensive Plan, including Five-Year

Action Plan, or Annual Statement;

(iii) Funding a replacement reserve to carry out eligible

activities in future years, subject to the restrictions set forth in

paragraph (f) of this section;

(iv) Preparing the Comprehensive Plan and Five-Year Action Plan

under Sec. 950.652 and the Annual Submission under Sec. 950.656,

including reasonable costs necessary to assist residents to participate

in a meaningful way in the planning, implementation and monitoring

process; and

(v) Carrying out an audit, in accordance with 24 CFR part 44.

(2) For a CIAP IHA, the eligible costs are activities approved by

HUD and included in an approved CIAP budget.

(b) Demonstration of viability. Except in the case of emergency

work, an IHA shall only expend funds on a development for which the IHA

has determined, and HUD agrees, that the completion of the improvements

and replacements (for CGP IHAs, as identified in the comprehensive

plan) will reasonably ensure the long-term physical and social

viability of the development at a reasonable cost (as defined in

Sec. 950.102), or for essential non-routine maintenance needed to keep

the property habitable until the demolition or disposition application

is approved and residents are relocated.

(c) Physical improvements. Eligible costs include alterations,

betterments, additions, replacements, and non-routine maintenance that

are necessary to meet the modernization and energy conservation

standards prescribed in Sec. 950.610. These mandatory standards may be

exceeded when the IHA (and HUD in the case of CIAP IHAs) determine that

it is necessary or highly desirable for the long-term physical and

social viability of the individual development. Development specific

work includes work items that are modest in design and cost, but still

blend in with the design and architecture of the surrounding community

by including amenities, quality materials and design and landscaping

features that are customary for the locality and culture. The Field

Office has the authority to approve nondwelling space where such space

is needed to administer, and is of direct benefit to, the Public and

Indian Housing Program. If demolition or disposition is proposed, an

IHA shall comply with subpart M of this part. Additional dwelling space

may be added to existing units.

(d) Turnkey III developments. (1) General. Eligible physical

improvement costs for existing Turnkey III developments are limited to

work items that are not the responsibility of the homebuyer families

and that are related to health and safety, correction of development

deficiencies, physical accessibility, energy audits and cost-effective

energy conservation measures, or LBP testing, interim containment,

professional risk assessment and abatement. In addition, management

improvements are eligible costs.

(2) Ineligible costs. Routine maintenance or replacements, and

items that are the responsibility of the homebuyer families are

ineligible costs.

(3) Exception for vacant or non-homebuyer-occupied Turnkey III

units. (i) Notwithstanding the requirements of paragraph (d)(1) of this

section, an IHA may substantially rehabilitate a Turnkey III unit

whenever the unit becomes vacant or is occupied by a non-homebuyer

family in order to return the unit to the inventory or make the unit

suitable for homeownership purposes. An IHA that intends to use funds

under this paragraph must identify in its CIAP Application or CGP

Annual Submission the estimated number of units proposed for

substantial rehabilitation and subsequent sale. In addition, an IHA

must demonstrate that it has homebuyers who both are eligible for

homeownership, in accordance with the requirements of this part, and

have demonstrated their intent to be placed into each of the Turnkey

III units proposed to be substantially rehabilitated.

(ii) Before an IHA may be approved for substantial rehabilitation

of a unit under this paragraph (d), it must first deplete any Earned

Home Payments Account (EHPA) or Non-Routine Maintenance Reserve (NRMR)

pertaining to the unit, and request the maximum amount of operating

subsidy. Any increase in the value of a unit caused by its substantial

rehabilitation under this paragraph shall be reflected solely by its

subsequent appraised value, and not by an automatic increase in its

selling price.

(e) Demolition and conversion costs. Eligible costs include:

(1) Demolition of dwelling units or non-dwelling facilities, where

the demolition is approved by HUD under subpart M of this part, and

related costs, such as clearing and grading the site after demolition

and subsequent site improvement to benefit the remaining portion of the

existing development; and

(2) Conversion of existing dwelling units to different bedroom

sizes or to non-dwelling use.

(f) Replacement reserve costs (for CGP only). (1) Funding a

replacement reserve to carry out eligible activities in future years is

an eligible cost, subject to the following restrictions:

[[Page 8725]]

(i) Annual CGP funds are not needed for existing needs, as

identified by the IHA in its needs assessments; or

(ii) A physical improvement requires more funds than the IHA would

receive under its annual formula allocation; or

(iii) A management improvement requires more funds than the IHA may

use under its 20% limit for management improvements (except as provided

in paragraph (n)(2)(i) of this section), and the IHA needs to save a

portion of its annual grant, in order to combine it with a portion of

subsequent year(s) grants to fund the work item.

(2) The IHA shall invest replacement reserve funds so as to

generate a return equal to or greater than the average 91-day Treasury

bill rate.

(3) Interest earned on funds in the replacement reserve will not be

added to the IHA's income in the determination of an IHA's operating

subsidy eligibility, but must be used for eligible modernization costs.

(4) To the extent that its annual formula allocation and any

unobligated balances of modernization funds are not adequate to meet

emergency needs, an IHA must first use its replacement reserve, where

funded, to meet emergency needs, before requesting funds from the

reserve under Sec. 950.606.

(5) An IHA is not required to use its replacement reserve for

natural and other disasters.

(g) Management improvement costs. (1) General. Management

improvements that are development-specific or IHA-wide in nature are

eligible costs where needed to upgrade the operation of the IHA's

developments, sustain physical improvements at those developments or

correct management deficiencies. An IHA's ongoing operating expenses

are ineligible management improvement costs. For CIAP IHAs, management

improvements may be funded as a single work item.

(2) Eligible costs. Eligible costs include:

(i) General management improvement costs. Eligible costs include

general management improvement costs, such as: management, financial,

and accounting control systems of the IHA; adequacy and qualifications

of IHA personnel, including training; resident programs and services

through the coordination of the provision of social services from

tribal or local government or other public and private entities;

resident and development security; resident selection and eviction;

occupancy; rent collection; maintenance; and equal opportunity.

(ii) Economic development costs. Eligible costs include job

training for residents and resident business development activities,

for the purpose of carrying out activities related to the

modernization-funded management and physical improvements. HUD

encourages IHAs, to the greatest extent feasible, to hire residents as

trainees, apprentices, or employees to carry out the modernization

program under this part, and to contract with resident-owned businesses

for modernization work.

(iii) Resident management costs. Eligible costs include technical

assistance to a resident council or resident management corporation

(RMC), as defined in Sec. 950.962, in order to: determine the

feasibility of resident management to carry out management functions

for a specific development or developments; train residents in skills

directly related to the operations and management of the development(s)

for potential employment by the RMC; train RMC board members in

community organization, board development, and leadership; and assist

in the formation of an RMC.

(iv) Resident homeownership costs. Eligible costs are limited to

the study of the feasibility of converting rental to homeownership

units and the preparation of an application for conversion to

homeownership or sale of units.

(v) Preventive maintenance system. Eligible costs include the

establishment of a preventive maintenance system or improvement of an

existing system. A preventive maintenance system must provide for

regular inspections of building structures, systems and units and

determine the applicability of work eligible for operating funds

(routine maintenance) and work eligible for modernization funding (non-

routine maintenance).

(h) Drug elimination costs. Eligible costs include drug elimination

activities involving management or physical improvements, as specified

by HUD.

(i) LBP costs. Eligible costs include professional risk assessments

and interim containment of family developments/buildings constructed

before 1980, testing and abatement of family developments/buildings

constructed before 1978, and costs for insurance coverage for pollution

hazards associated with the testing, abatement, clean-up and disposal

of LBP on applicable surfaces of family developments/buildings

constructed before 1978.

(j) Administrative costs. Administrative costs necessary for the

planning, design, implementation and monitoring of the physical and

management improvements are eligible costs and include the following:

(1) Salaries. The salaries of non-technical and technical IHA

personnel assigned full-time or part-time to modernization are eligible

costs only where the scope and volume of the work are beyond that which

could be reasonably expected to be accomplished by such personnel in

the performance of their non-modernization duties. An IHA shall

properly apportion to the appropriate program budget any direct charges

for the salaries of assigned full- or part-time staff (e.g., to the

CIAP, CGP or operating budget);

(2) Employee benefit contributions. IHA contributions to employee

benefit plans on behalf of non-technical and technical IHA personnel

are eligible costs in direct proportion to the amount of salary charged

to the CIAP or CGP, as appropriate;

(3) Preparation of CIAP or CGP required documents.

(4) Resident participation. Eligible costs include those associated

with ensuring the meaningful participation of residents in the

development of the CIAP application or the CGP Annual Submission and

Comprehensive Plan and the implementation and monitoring of the

approved modernization program; and

(5) Other administrative costs, such as telephone and facsimile, as

specified by HUD.

(k) Audit costs (for CGP only). Eligible costs are limited to the

portion of the audit costs that are attributable to the modernization

program.

(l) Architectural/engineering and consultant fees. Eligible costs

include fees for planning, identification of needs, detailed design

work, preparation of construction and bid documents and other required

documents, LBP professional risk assessments and testing, and

inspection of work in progress.

(m) Relocation costs. Eligible costs include relocation and other

assistance for permanent and temporary relocation, as a direct result

of rehabilitation, demolition or acquisition for a modernization-funded

activity, where this assistance is required by 49 CFR part 24 or 24 CFR

950.117.

(n) Cost limitations. (1) CIAP costs. (i) Management improvement

costs. Management improvement costs shall not exceed a percentage of

the CIAP funds available to a Field Office in a particular FFY, as

specified by HUD.

(ii) Planning costs. Planning costs are costs that are incurred

before HUD approval of the CIAP application and that are related to

developing the CIAP application or carrying out eligible modernization

planning, such as detailed design work, preparation of

[[Page 8726]]

solicitations, and LBP professional risk assessment and testing.

Planning costs may be funded as a single work item. If an IHA incurs

planning costs without prior HUD approval, an IHA does so with the full

understanding that the costs may not be reimbursed upon approval of the

CIAP application. Planning costs shall not exceed 5 percent of the CIAP

funds available to a Field Office in a particular FFY.

(2) CGP costs. (i) Management improvement costs. Notwithstanding

the full fungibility of work items, an IHA shall not use more than a

total of 20 percent of its annual grant for management improvement

costs in account 1408, unless specifically approved by HUD.

(ii) Administrative costs. Notwithstanding the full fungibility of

work items, an IHA shall not use more than a total of 10 percent of its

annual grant on administrative costs in account 1410, excluding any

costs related to lead-based paint or asbestos testing (whether

conducted by force account employees or by a contractor), in-house

architectural/engineering (A/E) work, or other special administrative

costs required by tribal or State law, unless specifically approved by

HUD.

(3) Program benefit. Where the physical or management improvement,

including administrative cost, will benefit programs other than Indian

housing, such as Section 8 or local revitalization programs, eligible

costs are limited to the amount directly attributable to the Indian

housing program.

(4) No duplication. Any eligible cost for an activity funded by

CIAP or CGP shall not also be funded by any other HUD program.

(o) Ineligible costs. Ineligible costs include:

(1) Luxury improvements;

(2) Indirect administrative costs (overhead), as defined in OMB

Circular A-87;

(3) Indian housing operating assistance;

(4) Direct provision of social services, through either force

account or contract labor, from FFY 1996 and future FFYs funds, unless

otherwise provided by law; and

(5) Other ineligible activities, as specified by HUD.

(p) Expanded eligibility for FFY 1995 and prior year modernization

funds. The FFY 1995 Rescissions Act expanded the eligible activities

that may be funded with CIAP or CGP assistance provided from FFY 1995

and prior FFY funds. Such activities include, but are not limited to:

(1) New construction or acquisition of additional Indian housing

units, including replacement units;

(2) Modernization activities related to the Indian housing portion

of housing developments held in partnership, or cooperation with non-

Indian housing entities; and

(3) Other activities related to Indian housing, including

activities eligible under the Urban Revitalization Demonstration (HOPE

VI).

Sec. 950.610 Modernization and energy conservation standards.

All improvements funded under this part shall:

(a) Meet the modernization standards as prescribed by HUD;

(b) Incorporate cost-effective energy conservation measures,

identified in the IHA's most recently updated energy audit, conducted

pursuant to part 950, subpart K;

(c) Where changing or installing a new utility system, conduct a

life-cycle cost analysis, reflecting installation and operating costs;

and

(d) Provide decent, safe, and sanitary living conditions in IHA-

owned and IHA-operated public housing.

Sec. 950.612 Force account.

(a) An IHA may undertake the activities using force account or

contract labor, including contracting with an RMC, without prior HUD

approval.

(b) If the entirety of modernization activity (including the

planning and architectural design of the rehabilitation) is

administered by the RMC, the IHA shall not retain for any

administrative or other reason, any portion of the modernization funds

provided, unless the IHA and the RMC provide otherwise by contract.

Sec. 950.614 Initiation of modernization activities.

After HUD has approved the modernization program and entered into

an ACC amendment with the IHA, an IHA shall undertake the modernization

activities and expenditures set forth in its approved CIAP budget or

CGP Annual Statement/Five-Year Action Plan in a timely, efficient and

economical manner. All approved funding must be obligated within two

years of approval and expended within three years of approval unless

HUD approves a longer time period in the IHA's implementation schedule,

as set forth in the CIAP budget or CGP Annual Statement. HUD may

approve a longer time period for such reasons as the large size of the

grant or the complexity of the work.

Sec. 950.616 Fund requisitions.

To draw down modernization funds against the approved CIAP budget

or CGP Annual Statement, as appropriate, an IHA shall comply with

requirements prescribed by HUD.

Sec. 950.618 Contracting requirements.

In addition to the requirements specified in 24 CFR parts 85 and

subpart B of this part, the following provisions apply:

(a) Architect/engineer and other professional services contracts.

For CIAP only and notwithstanding 24 CFR 85.36(g), an IHA shall comply

with HUD requirements to either:

(1) Where the proposed contract amount exceeds the HUD-established

threshold, submit the contract for prior HUD approval before execution

or issuance; or

(2) Where the proposed contract amount does not exceed the HUD-

established threshold, certify that the scope of work is consistent

with the originally approved modernization program, and that the amount

is appropriate and does not result in the total HUD-approved CIAP

budget being exceeded.

(b) Assurance of completion. For CIAP and CGP and notwithstanding

24 CFR 85.36(h), for each construction contract over $100,000, the

contractor shall furnish a bid guarantee from each bidder equivalent to

5% of the bid price; and one of the following:

(1) A performance and payment bond for 100 percent of the contract

price; or

(2) Separate performance and payment bonds, each for 50% or more of

the contract price; or

(3) A 20% cash escrow; or

(4) A 25% irrevocable letter of credit.

(c) Construction solicitations. For CIAP only and notwithstanding

24 CFR 85.36(g), an IHA shall comply with HUD requirements to either:

(1) Where the estimated contract amount exceeds the HUD-established

threshold, submit a complete construction solicitation for prior HUD

approval before issuance; or

(2) Where the estimated contract amount does not exceed the HUD-

established threshold, certify receipt of the required architect's/

engineer's certification that the construction documents accurately

reflect HUD-approved work and meet the modernization and energy

conservation standards and that the construction solicitation is

complete and includes all mandatory items.

(d) Contract awards. (1) For CIAP only, an IHA shall obtain HUD

approval of the proposed award of a contract if the contract work is

inconsistent with

[[Page 8727]]

the originally approved modernization program or if the procurement

meets the criteria set forth in 24 CFR 85.36(g)(2)(i) through (iv). In

all other instances, an IHA shall make the award without HUD approval

after the IHA has certified that:

(i) The solicitation and award procedures were conducted in

compliance with tribal, State or local laws and Federal requirements;

(ii) The award does not meet the criteria in 24 CFR 85.36(g)(2)(i)

through (iv) for prior HUD approval; and

(iii) The contractor is not on the Lists of Parties Excluded from

Federal Procurement or Nonprocurement Programs.

(2) For CGP only, an IHA shall obtain HUD approval of the proposed

award of a contract if the procurement meets the criteria set forth in

24 CFR 85.36(g)(2)(i) through (iv).

(e) Contract modifications. For CIAP only and notwithstanding 24

CFR 85.36(g), except in an emergency endangering life or property, an

IHA shall comply with HUD requirements to either:

(1) Where the proposed contract modification exceeds the HUD-

established threshold, submit the proposed modification for prior HUD

approval before issuance; or

(2) Where the proposed contract modification does not exceed the

HUD-established threshold, certify that the proposed modification is

within the scope of the contract and that any additional costs are

within the total HUD-approved CIAP budget amount.

(f) Construction requirements. Where indicated by poor performance,

an IHA may be required to submit to HUD periodic progress reports and,

for prior HUD approval, construction completion documents above a HUD-

specified amount. For CGP only, an IHA is notified of additional

construction requirements by a notice of deficiency or a corrective

action order.

Sec. 950.620 On-site inspections.

It is the responsibility of the IHA, not HUD, to provide, by

contract or otherwise, adequate and competent supervisory and

inspection personnel during modernization, whether work is performed by

contract or force account labor, and with or without the services of an

architect/engineer, to assure work quality and progress.

Sec. 950.622 Fiscal closeout.

(a) Actual modernization cost certificate (AMCC). Upon expenditure

by the IHA of all funds, or termination by HUD of the activities funded

in a modernization program, an IHA shall submit the AMCC, in a form

prescribed by HUD, to HUD for review and approval for audit. After

audit verification, HUD shall approve the AMCC.

(b) Audit. The audit shall follow the guidelines prescribed in 24

CFR part 44, Non-Federal Government Audit Requirements. If the pre-

audit or post-audit AMCC indicates that there are excess funds, an IHA

shall immediately remit the excess funds as directed by HUD. If the

pre-audit or post-audit AMCC discloses unauthorized or ineligible

expenditures, an IHA shall immediately take such corrective actions as

HUD may direct.

Comprehensive Improvement Assistance Program (For IHAs that Own or

Operate Fewer than 250 Indian Housing Units)

Sec. 950.630 Procedures for obtaining approval of a modernization

program.

(a) HUD notification. After modernization funds for a particular

FFY become available, HUD shall publish in the Federal Register a

notice of funding availability (NOFA) and the time frame for submission

of the CIAP application, and other pertinent information.

(b) IHA consultation with tribal/local officials and residents/

homebuyers. An IHA shall develop the application in consultation with

tribal and local officials and with residents and homebuyers, as set

forth in Sec. 950.632.

(c) IHA application. An IHA shall submit to HUD an application, in

a form prescribed by HUD. Where an IHA has not included all its

developments in the CIAP application, HUD may not consider funding any

nonemergency work at excluded developments or subsequently approve use

of leftover funds at excluded developments.

(d) Completeness review. To be eligible for processing, an

application must be physically received by HUD by the time and date

specified in the NOFA. Immediately after the application deadline, HUD

shall perform a completeness review to determine whether the

application is complete, responsive to the NOFA, and acceptable for

technical processing.

(1) If the application form or any other essential document, as

specified in the NOFA, is missing, the IHA's application will be

considered substantially incomplete and, therefore, ineligible for

further processing. HUD shall immediately notify the IHA in writing.

(2) If other required documents, as specified in the NOFA, are

missing or there is a technical mistake, such as no signature on a

submitted form, HUD shall immediately notify the IHA in writing to

submit or correct the deficiency within a specified period of time from

the date of HUD's written notification. This is not additional time to

substantially revise the application. Deficiencies that may be

corrected at this time are inadvertently omitted documents or

clarifications of previously submitted material and other changes which

are not of such a nature as to improve the competitive position of the

application.

(3) If an IHA fails to submit or correct the items within the

required time period, the IHA's application will be ineligible for

further processing. HUD shall immediately notify the IHA in writing

after this occurs.

(4) An IHA may submit an application for Emergency Modernization

whenever needed.

(e) Eligibility review. (1) Eligibility for processing. To be

eligible for processing each eligible development for which work is

proposed must have reached the Date of Full Availability (DOFA) and be

under ACC amendment at the time of CIAP application submission.

(2) Eligibility for processing on reduced scope. When the following

conditions exist, an IHA will be reviewed on a reduced scope:

(i) Section 504 compliance. Where an IHA has not completed all

required structural changes to meet the need for accessible units, as

identified in the IHA's Section 504 needs assessment, the IHA is

eligible for processing only for Emergency Modernization or physical

work needed to meet Section 504 requirements.

(ii) Lead-based paint (LBP) testing compliance. Where an IHA has

not complied with the statutory requirement to complete LBP testing on

all pre-1978 family units, the IHA is eligible for processing only for

Emergency Modernization or work needed to complete the testing.

(iii) Fair Housing and Equal Opportunity (FHEO) compliance. Where

an IHA has not complied with any applicable FHEO requirements set forth

in Sec. 950.115, as evidenced by an enforcement action, finding or

determination, the IHA is eligible for processing only for Emergency

Modernization or for work needed to remedy civil rights deficiencies--

unless the IHA is implementing a voluntary compliance agreement or

settlement agreement designed to correct the area(s) of noncompliance.

The enforcement actions, findings, or determinations that trigger

limited eligibility are described in paragraphs (e)(2)(iii)(A) through

(E) of this section:

(A) A pending proceeding against the IHA based upon a charge of

[[Page 8728]]

discrimination issued under the Fair Housing Act. A charge of

discrimination is a charge under section 810(g)(2) of the Fair Housing

Act (42 U.S.C. 3610(g)(2)), issued by the Department's General Counsel

or legally authorized designee;

(B) A pending civil rights suit against the IHA, referred by the

Department's General Counsel and instituted by the Department of

Justice;

(C) Outstanding HUD findings of IHA noncompliance with civil rights

statutes and executive orders under Sec. 950.115, or implementing

regulations, as a result of formal administrative proceedings;

(D) A deferral of the processing of applications from the IHA

imposed by HUD under Title VI of the Civil Rights Act of 1964 (42

U.S.C. 2000d-1) and HUD implementing regulations (24 CFR 1.8), the

Attorney General's Guidelines (28 CFR 50.3), and procedures (HUD

Handbook 8040.1), or under Section 504 of the Rehabilitation Act of

1973 (29 U.S.C. 794) and HUD implementing regulations (24 CFR 8.57); or

(E) An adjudication of a violation under any of the authorities

specified in Sec. 950.115 in a civil action filed against the IHA by a

private individual.

(f) Technical processing. After all CIAP applications are reviewed

for eligibility, HUD shall categorize the eligible IHAs and their

developments into two processing groups: Group 1 for Emergency

Modernization; and Group 2 for Other Modernization. IHA developments

may be included in both groups and the same development may be in each

group. However, an IHA is only required to submit one CIAP application.

Group 1 developments are not subject to the technical review rating and

ranking and the long-term viability and reasonable cost determination.

Group 2 developments are subject to the technical review rating and

ranking and the long-term viability and reasonable cost determination.

Preference will be given to IHAs which request assistance for

developments that either have conditions that threaten the health or

safety of the residents or have a significant number of vacant,

substandard units, and which have demonstrated a capability of carrying

out the proposed activities.

(g) Rating on technical review factors. After categorizing the

eligible IHAs/developments into Group 1 and Group 2, HUD shall review

and rate each Group 2 IHA on each of the following technical review

factors:

(1) Extent and urgency of need, including need to comply with

statutory, regulatory, or court-ordered deadlines;

(2) Extent of vacancies, where the vacancies are not due to

insufficient demand;

(3) IHA's modernization capability;

(4) IHA's management capability;

(5) Degree of resident involvement in IHA operations;

(6) Degree of IHA activity in resident initiatives, including

resident management, economic development, and drug elimination

efforts;

(7) Degree of resident employment;

(8) Tribal/local government support for proposed modernization; and

(9) Such additional factors as the Secretary determines necessary

and appropriate.

(h) Ranking and selection for Joint Review. After rating all Group

2 IHAs/developments, the Area ONAP shall then rank each Group 2 IHA

based on its total score, list Group 2 IHAs in descending order,

subject to confirmation of need and cost at Joint Review, and identify

for Joint Review selection the highest IHA ranking applications in

Group 2 and other Group 2 IHAs with lower ranking applications, but

with high priority needs, which most reasonably approximate the amount

of modernization which can be funded. High priority needs are

nonemergency needs, but related to: health or safety; vacant,

substandard units; structural or system integrity; or compliance with

statutory, regulatory, or court-ordered deadlines. All Group 1

applications are automatically selected for Joint Review.

(i) Joint review. The purpose of the Joint Review is for HUD to

discuss with an IHA the proposed modernization program, as set forth in

the CIAP application, review long-term viability and cost

reasonableness determinations, and determine the size of the grant, if

any, to be awarded. HUD shall notify each IHA whose application has

been selected for further processing as to whether Joint Review will be

conducted on-site or off-site (e.g., by telephone or in-office

meeting). An IHA shall prepare for Joint Review by preparing a draft

CIAP budget, and reviewing the other items to be covered during Joint

Review, as prescribed by HUD. If conducted on-site, Joint Review may

include an inspection of the proposed physical work. IHAs not selected

for Joint Review will be advised in writing of the reasons for non-

selection.

(j) Funding decisions. After all Joint Reviews are completed, HUD

shall adjust the IHAs, developments, and work items to be funded and

the amounts to be awarded, on the basis of information obtained from

Joint Reviews, environmental reviews, and FHEO review, and make the

funding decisions. An IHA will not be selected for CIAP funding if

there is a duplication of funding. HUD shall select all bona fide

emergencies in Group 1 before funding Group 2 applications. After

funding announcement, HUD shall request a funded IHA to submit a CIAP

budget, including an implementation schedule, and any other required

documents, including the ACC amendment. IHAs not selected for funding

will be advised in writing of the reasons for non-selection.

(k) ACC amendment. After HUD approval of the CIAP budget, HUD and

the IHA shall enter into an ACC amendment in order for the IHA to draw

down modernization funds. The ACC amendment shall require 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). The IHA Executive Director, where authorized by

the Board of Commissioners and permitted by tribal or State law, may

sign the ACC amendment on behalf of the IHA. HUD has the authority to

condition an ACC amendment (e.g., to require an IHA to hire a

modernization coordinator or contract administrator to administer its

modernization program).

(l) Declaration of trust. As HUD may require, an IHA shall execute

and file for record a Declaration of Trust as provided under the ACC to

protect the rights and interests of HUD throughout the 20-year period

during which the IHA is obligated to operate its developments in

accordance with the ACC, the Act, and HUD regulations and requirements.

A Declaration of Trust is not required for Mutual Help units.

(Approved by the Office of Management and Budget under control

number 2577-0044. An agency may not conduct or sponsor, and a person

is not required to respond to, a collection of information unless

the collection displays a valid control number.)

Sec. 950.632 Resident and homebuyer participation.

An IHA shall establish a Partnership Process, as defined in

Sec. 950.102, to develop, implement, and monitor the CIAP. Before

submission of the CIAP application, an IHA shall consult with the

residents, the resident organization, or the resident management

corporation (see subpart O of this part) (herein referred to as the

resident) of the development(s) being proposed for modernization,

regarding its intent to submit an application and to solicit resident

comments. An IHA shall give residents a reasonable opportunity to

present their views on the proposed modernization and alternatives to

it and

[[Page 8729]]

shall give full and serious consideration to resident recommendations.

An IHA shall respond in writing to the residents, indicating its

acceptance or rejection of resident recommendations, consistent with

HUD requirements and the IHA's own determination of efficiency,

economy, and need. After HUD approval of the modernization program, an

IHA shall inform the residents of the approved work items and its

progress during implementation. Where HUD does not approve the

modernization program, an IHA shall so inform the residents.

Sec. 950.634 Budget revisions.

(a) An IHA shall not incur any modernization cost in excess of the

total HUD-approved CIAP budget. An IHA shall submit a budget revision,

in a form prescribed by HUD, if the IHA plans to deviate from the

originally approved modernization program, as it was competitively

funded, by deleting or substantially revising approved work items or

adding new work items that are unrelated to the originally approved

modernization program.

(b) In addition to the provisions of paragraph (a) of this section,

an IHA shall comply with the following requirements:

(1) An IHA is not required to obtain prior HUD approval if, in

order to complete the originally approved modernization program, the

IHA needs to delete or revise approved work items or add new related

work items consistent with the original modernization program. In such

case, an IHA shall certify that the revisions are necessary to carry

out the approved work and do not result in substantial changes to the

competitively funded modernization program.

(2) An IHA shall not incur any modernization cost on behalf of any

development that is not covered by the original CIAP application.

(3) Where there are funds leftover after completion of the

originally approved modernization program, an IHA may, without prior

HUD approval, use the remaining funds to carry out other eligible

modernization activities at developments covered by the original CIAP

application.

Sec. 950.636 Progress reports.

For each six-month period ending March 31 and September 30, until

completion of the modernization program or expenditure of all funds, an

IHA shall submit a progress report, in a form prescribed by HUD, to the

HUD Area ONAP. Where HUD determines that an IHA is having

implementation problems, HUD may require more frequent reporting.

Sec. 950.638 Time extensions.

An IHA shall not obligate or expend funds after the obligation or

expenditure deadline date approved by HUD in the original

implementation schedule without a time extension, as follows:

(a) Certification. An IHA may extend an obligation or expenditure

deadline date no later than 30 calendar days after the existing

deadline date, without prior HUD approval, for a time period

commensurate with the delay, where the IHA certifies that the delay is

due to reasons outside the IHA's control, such as:

(1) Need to use leftover funds from a completed modernization

program for additional work;

(2) Unforeseen delays in contracting or contract administration;

(3) Litigation; and

(4) Delay by HUD or other institutions. Delay by the IHA's staff or

Board of Commissioners or a change in the Executive Director is not

considered to be outside of the IHA's control.

(b) Prior HUD approval. Where an IHA is unable to meet an

obligation or expenditure deadline date and the delay is not due to

reasons within the IHA's control, the IHA must request HUD approval of

a time extension no later than 30 calendar days after the deadline

date, to avoid recapture of funds. The request shall include an

explanation of the delay, the steps taken to prevent future delay, and

the requested extension.

Sec. 950.640 HUD review of IHA performance.

HUD shall periodically review IHA performance in carrying out its

approved modernization program to determine compliance with HUD

requirements, the quality of an IHA's inspections as evidenced by the

quality of work, and the timeliness of the work. HUD's review may be

conducted either in-office or on-site. Where conducted in-office, an

IHA shall forward any requested documents to HUD for post-review. Where

deficiencies are noted, an IHA shall take such corrective actions as

HUD may direct.

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

Indian Housing Units)

Sec. 950.650 Determination of formula amount.

(a) Submission of formula characteristics report. (1) Formula

characteristics report. In its first year of participation in the CGP,

each IHA shall verify and provide data to HUD, in a form and at a time

to be prescribed by HUD, concerning IHA and development

characteristics, so that HUD can develop the IHA's annual funding

allocation under the CGP in accordance with Sec. 950.604(e) and (f). If

an IHA fails to submit to HUD the formula characteristics report by the

prescribed deadline, HUD will use the data that it has available

concerning IHA and development characteristics for purposes of

calculating the IHA's formula share. After its first year of

participation in the CGP, an IHA is not required to submit formula

characteristics report data to HUD, but is required to respond to data

transmitted by HUD if there have been changes to its inventory from

that previously reported, or when requested by HUD. On an annual basis,

HUD will transmit to the IHA the formula characteristics report that

reflects the data that will be used to determine the IHA's formula

share. The IHA will have at least 30 calendar days to review and advise

HUD of errors in this HUD report. Necessary adjustments will be made to

the IHA's data before the formula is run for the current FFY.

(2) IHA Board Resolution. In its first year of participation in the

CGP, the IHA must include with its formula characteristics report under

paragraph (a)(1) of this section, a resolution adopted by the IHA Board

of Commissioners approving the report, and certifying that the data

contained in the formula characteristics report are accurate.

(b) HUD notification of formula amount; appeal rights. (1) Formula

amounts notification. After HUD determines an IHA's formula allocation

under Sec. 950.604(e) and (f) based upon the IHA, development, and

community characteristics, it shall notify the IHA of its formula

amount and provide instructions on the Annual Submission in accordance

with Secs. 950.652(a) and 950.656;

(2) Appeal based upon unique circumstances. An IHA may appeal in

writing HUD's determination of its formula amount within 60 calendar

days of the date of HUD's determination on the basis of ``unique

circumstances.'' The IHA shall indicate what is unique, specify the

manner in which it is different from all other IHAs participating in

the CGP, and provide any necessary supporting documentation. HUD shall

render a written decision on an IHA's appeal under this paragraph

within 60 calendar days of the date of its receipt of the IHA's request

for an appeal. HUD shall publish in the Federal Register a description

of the facts supporting any successful appeals based upon ``unique

[[Page 8730]]

circumstances.'' Any adjustments resulting from successful appeals in a

particular FFY under this paragraph shall be made from the subsequent

years' allocation of funds under this part;

(3) Appeal based upon error. An IHA may appeal in writing HUD's

determination of its formula amount within 60 calendar days of the date

of HUD's determination on the basis of an error. The IHA may appeal on

the basis of error the correctness of data in the formula

characteristics report. The IHA shall describe the nature of the error

and provide any necessary supporting documentation. HUD shall respond

to the IHA's request within 60 calendar days of the date of its receipt

of the IHA's request for an appeal. Any adjustment resulting from

successful appeals in a particular FFY under this paragraph shall be

made from subsequent years' allocation of funds under this part;

(c) IHAs determined to be high risk. If an IHA is determined to

have serious deficiencies in accordance with Sec. 950.135, or if the

IHA fails to meet, or to make reasonable progress toward meeting, the

goals previously established in its management improvement plan under

Sec. 950.135, HUD may designate the IHA as high risk. If HUD designates

the IHA as high risk with respect to modernization, HUD may withhold

some or all of the IHA's annual grant; HUD may declare a breach of the

grant agreement with respect to all or some of the IHA's functions, so

that the IHA or a particular function of the IHA may be administered by

another entity; or HUD may take other sanctions authorized by law or

regulation.

Sec. 950.652 Comprehensive plan (including Five-Year Action Plan).

(a) Submission. As soon as possible after modernization funds first

become available for allocation under this subpart, HUD shall notify

IHAs in writing of their formula amount. For planning purposes, IHAs

may use the amount they received under CGP in the prior year in

developing their comprehensive plan, or they may wait for the annual

HUD notification of formula amount under Sec. 950.650(b)(1).

(b)(1) Resident participation. An IHA is required to develop,

implement, monitor, and annually amend portions of its comprehensive

plan in consultation with residents of the developments covered by the

comprehensive plan, and with democratically elected resident groups. In

addition, the IHA shall also consult with resident management

corporations (RMCs) to the extent that an RMC manages a development

covered by the comprehensive plan. The IHA, in partnership with the

residents, shall develop and implement a process for resident

participation that ensures that residents are involved in a meaningful

way in all phases of the CGP. Such involvement shall include

implementing the Partnership Process as a critical element of the CGP.

(2) Establishment of Partnership Process. The IHA, in partnership

with the residents of the developments covered by the plan (and which

may include resident leaders, resident organizations, resident advisory

councils/boards and RMCs) must establish a Partnership Process to

develop and implement the goals, needs, strategies, and priorities

identified in the Comprehensive Plan. After residents have organized to

participate in the CGP, they may decide to establish a volunteer

advisory group of experts in various professions to assist them in the

CGP Partnership Process. The Partnership Process shall be designed to

achieve the following:

(i) To assure that residents are fully briefed and involved in

developing the content of, and monitoring the implementation of, the

Comprehensive Plan including, but not limited to, the physical and

management needs assessments, viability analysis, five-year action

plan, and annual statement. If necessary, the IHA shall develop and

implement capacity building strategies to ensure meaningful resident

participation in CGP. Such technical assistance efforts for residents

are eligible management improvement costs under CGP;

(ii) To enable residents to participate, on an IHA-wide or area-

wide basis, in ongoing discussions of the comprehensive plan and

strategies for its implementation, and in all meetings necessary to

ensure meaningful participation.

(3) Public notice. Within a reasonable amount of time before the

advance meeting for residents and duly elected resident organizations

under paragraph (b)(4) of this section, and the public hearing under

paragraph (b)(5) of this section, the IHA shall provide public notice

of the advance meeting and the public hearing in a manner determined by

the IHA and which ensures notice to all duly elected resident

organizations;

(4) Advance meeting for residents and duly elected resident

organizations. The IHA shall hold, within a reasonable amount of time

before the public hearing under paragraph (b)(5) of this section, a

meeting for residents and duly elected resident organizations at which

the IHA shall explain the components of the comprehensive plan. The

meeting shall be open to all residents and duly elected resident

organizations;

(5) Public Hearing. The IHA shall hold at least one public hearing,

and any appropriate number of additional hearings, to present

information on the comprehensive plan/annual submission and the status

of prior approved programs. The public hearing shall provide ample

opportunity for residents, tribal government officials, and other

interested parties to express their priorities and concerns. The IHA

shall give full consideration to the comments and concerns of

residents, tribal government officials, and other interested parties.

(c) Tribal/local government participation. An IHA shall consult

with and provide information to appropriate tribal and local government

officials with respect to the development of the comprehensive plan. In

the case of an IHA with developments in multiple jurisdictions, the IHA

may meet this requirement by consulting with an advisory group

representative of all the jurisdictions. At a minimum, such

consultation shall include providing such officials with:

(1) Advance written notice of the public hearing required under

paragraph (b)(5) of this section;

(2) A copy of the summary of total preliminary estimated costs to

address physical needs by each development and management/operations

needs IHA-wide, a specific description of the IHA's process for

maximizing the level of participation by residents, a summary of the

general issues raised on the plan by residents and others during the

public comment process, and the IHA's response to the general issues.

IHA records, such as minutes of planning meetings or resident surveys,

shall be maintained in the IHA's files and made available to residents,

resident organizations, and other interested parties upon request; and

(3) An opportunity to express their priorities and concerns to

ensure due consideration in the IHA's planning process.

(d) Contents of Comprehensive Plan. The comprehensive plan shall

identify all of the physical and management improvements needed for an

IHA and all of its developments, and that represent needs eligible for

funding under Sec. 950.608. The plan shall also include preliminary

estimates of the total cost of these improvements. The plan shall set

forth general strategies for addressing the identified needs, and

highlight any special strategies, such as major redesign or partial

demolition of a development, that are necessary to

[[Page 8731]]

ensure the long-term physical and social viability of the development.

Where long-term physical and social viability of the development is

dependent upon revitalization of the surrounding neighborhood in the

provision of or coordination of public services, or the consolidation

or coordination of drug prevention and other human service initiatives,

the IHA shall identify these needs and strategies. Each comprehensive

plan shall contain the following elements:

(1) Executive summary. An IHA shall include as part of its

comprehensive plan an executive summary to facilitate review and

comprehension by development residents and by the public. The executive

summary shall include:

(i) A summary of total preliminary estimated costs to address

physical needs by each development and IHA-wide physical and management

needs; and

(ii) A specific description of the IHA's process for maximizing the

level of participation by residents during the development,

implementation, and monitoring of the comprehensive plan, a summary of

the general issues raised on the plan by residents and others during

the public comment process, and the IHA's response to the general

issues. IHA records, such as minutes of planning meetings or resident

surveys, shall be maintained in the IHA's files and made available to

residents, duly elected resident organizations, and other interested

parties, upon request;

(2) Physical needs assessment. (i) Requirements. The physical needs

assessment identifies all of the work that an IHA would need to

undertake to bring each of its developments up to the modernization and

energy conservation standards, as required by the Act, to comply with

lead-based paint testing and abatement requirements under

Sec. 950.120(g), and to comply with other program requirements under

Sec. 950.120. The physical needs assessment is completed without regard

to the availability of funds, and shall include the following

information with respect to each of an IHA's developments:

(A) A brief summary of the physical improvements necessary to bring

each development to a level at least equal to the modernization and

energy conservation standards set forth in Sec. 950.610, to comply with

the lead-based paint testing and abatement requirements under

Sec. 950.120(g), and to comply with other program requirements under

Sec. 950.120. The IHA also should indicate the relative urgency of

need. If the IHA has no physical improvement needs at a particular

development at the time it completes its comprehensive plan, it must so

indicate. Similarly, if the IHA intends to demolish, partially

demolish, convert, or dispose of a development (or units within a

development), it must so indicate in the summary of physical

improvements;

(B) The replacement needs of equipment systems and structural

elements that will be required to be met (assuming routine and timely

maintenance is performed) during the period covered by the action plan;

(C) A preliminary estimate of the cost to complete the physical

work; and

(D) In addition, the IHA shall provide with respect to vacant or

non-homebuyer-occupied Turnkey III units, the estimated number of units

that the IHA is proposing for substantial rehabilitation and subsequent

sale, in accordance with Sec. 950.608(d)(3).

(ii) Sources of data. The IHA shall identify in its needs

assessment the sources from which it derived data to develop the

physical needs assessment under this paragraph (d)(2), and shall retain

such source documents in its files.

(3) Management needs assessment. (i) Requirements. The plan shall

include a comprehensive assessment of the improvements needed to

upgrade the management and operation of the IHA and of each viable

development, so that decent, safe, and sanitary living conditions will

be provided. The management needs assessment shall include the

following, with the relative urgency of need indicated:

(A) An identification of the most current needs related to the

following areas (to the extent that any of these needs is addressed in

a HUD-approved management improvement plan, the IHA may simply include

a cross-reference to these documents):

(1) The management, financial, and accounting control systems of

the IHA;

(2) The adequacy and qualifications of personnel employed by the

IHA in the management and operation of its developments, for each

significant category of employment;

(3) The adequacy and efficacy of:

(i) Resident programs and services;

(ii) Resident and development security;

(iii) Resident selection and eviction;

(iv) Occupancy;

(v) Maintenance;

(vi) Resident management and resident capacity building programs;

(vii) Resident opportunities for employment and business

development and other self-sufficiency opportunities for residents; and

(viii) Homeownership opportunities for residents.

(B) Any additional deficiencies identified through audits and HUD

monitoring reviews that are not addressed under paragraph (e)(3)(i)(A)

of this section. To the extent that any of these is addressed in a HUD-

approved management improvement plan, the IHA may include a cross-

reference to these documents;

(C) Any other management and operations needs that the IHA wants to

address at the IHA-wide or development level; and

(D) An IHA-wide preliminary cost estimate for addressing all the

needs identified in the management needs assessment, without regard to

the availability of funds.

(ii) Sources of data. The IHA shall identify in its needs

assessment the sources from which it derived data to develop the

management needs assessment under paragraph (d)(3) of this section, and

shall retain such source documents in its files.

(4) Demonstration of long-term physical and social viability. (i)

General. The plan shall include, on a development-by-development basis,

an analysis of whether completion of the improvements and replacements

identified under paragraphs (e)(2) and (e)(3) of this section will

reasonably ensure the long-term physical and social viability,

including achieving structural/system soundness and full occupancy, of

the development at a reasonable cost. For cost reasonableness, the IHA

shall determine whether the unfunded hard costs satisfy the definition

of ``reasonable cost.'' Where the IHA wishes to fund a development, for

other than emergencies, where hard costs exceed that reasonable cost,

the IHA shall submit written justification to the Field Office. If the

Field Office agrees with the IHA's request, the Field Office shall

forward its recommendation to Headquarters for final decision. Where

the estimated per unit unfunded hard cost is equal to or less than the

per unit TDC for the smallest bedroom size at the development, no

further computation of the TDC limit is required. The IHA shall keep

documentation in its files to support all cost determinations. The

Field Office will review cost reasonableness as part of its review of

the Annual Submission and the Performance and Evaluation Report. As

necessary, HUD will review the IHA's documentation in support of its

cost reasonableness, taking into account broader efforts to revitalize

the neighborhoods in which the development is located;

(ii) Determination of non-viability. When an IHA's analysis of a

development, under paragraph (e) of

[[Page 8732]]

this section, establishes that completion of the identified

improvements and replacements will not result in the long-term physical

and social viability of the development at a reasonable cost, the IHA

shall not expend CGP funds for the development, except for emergencies

and essential nonroutine maintenance necessary to maintain habitability

until residents can be relocated. The IHA shall specify in its

comprehensive plan the actions it proposes to take with respect to the

nonviable development (e.g., demolition or disposition under subpart M

of this part).

(5) Five-Year Action Plan. (i) General. The comprehensive plan

shall include a rolling five-year action plan to carry out the

improvements and replacements (or a portion thereof) identified under

paragraphs (e)(2) and (e)(3) of this section. In developing its five-

year action plan, the IHA shall assume that the current year funding or

formula amount will be available for each year of its five-year action

plan, whichever the IHA is using for planning purposes, plus the IHA's

estimate of the funds that will be available from other sources, such

as tribal, state, and local governments. All activities specified in an

IHA's five-year action plan are contingent upon the availability of

funds.

(ii) Requirements. Under the action plan, an IHA must indicate how

it intends to use the funds available to it under the CGP to address

the deficiencies, or a portion of the deficiencies, identified under

its physical and management needs assessments, as follows:

(A) Physical condition. With respect to the physical condition of

an IHA's developments, an IHA must indicate in its action plan how it

intends to address, over a five-year period, the deficiencies (or a

portion of the deficiencies) identified in its physical needs

assessment so as to bring each of its developments up to a level at

least equal to the modernization and energy conservation standards.

This would include specifying the work to be undertaken by the IHA in

major work categories (e.g., kitchens, electrical systems, etc.);

establishing priorities among the major work categories by development

and year based upon the relative urgency of need; and estimating the

cost of each of the identified major work categories. In developing its

action plan, an IHA shall give priority to the following:

(1) Activities required to correct emergency conditions;

(2) Activities required to meet statutory (or other legally

mandated) requirements;

(3) Activities required to meet the needs identified in the Section

504 needs assessment within the regulatory timeframe; and

(4) Activities required to complete lead-based paint testing and

abatement requirements.

(B) Management and operations. An IHA shall address in its action

plan the management and operations deficiencies (or a portion of the

deficiencies) identified in its management needs assessment, as

follows:

(1) With respect to the management and operations needs of the IHA,

the IHA shall identify how it intends to address with CGP funds, if

necessary, the deficiencies (or a portion thereof) identified in its

management needs assessment, including work identified through audits,

HUD monitoring reviews, and self-assessments (this would include

establishing priorities based upon the relative urgency of need); and

(2) A preliminary IHA-wide cost estimate, by major work category.

(iii) Procedure for maintaining current Five-Year Action Plan. The

IHA shall maintain a current Five-Year Action Plan by annually amending

its Five-Year Action Plan, in conjunction with the Annual Submission;

(6) Tribal/local government statement. The Comprehensive Plan shall

include a statement signed by the chief executive officer of the

appropriate governing body (or in the case of an IHA with developments

in multiple jurisdictions, from the CEO of each such jurisdiction),

certifying as to the following:

(i) The IHA developed the comprehensive plan/five-year action plan

or amendments thereto in consultation with officials of the appropriate

governing body and with development residents covered by the

comprehensive plan/five-year action plan, in accordance with the

requirements of paragraphs (b) and (c) of this section;

(ii) The comprehensive plan/five-year action plan or amendments

thereto are consistent with the appropriate governing body's assessment

of its low-income housing needs and that the appropriate governing body

will cooperate in providing resident programs and services; and

(iii) The IHA's proposed drug elimination activities are

coordinated with, and supportive of, local drug elimination strategies

and neighborhood improvement programs, if applicable.

(7) IHA resolution. The plan shall include a resolution, in a form

prescribed by HUD, adopted by the IHA Board of Commissioners, and

signed by the Board Chairman of the IHA, approving the comprehensive

plan or any amendments.

(e) Amendments to the Comprehensive Plan. (1) Extension of time for

performance. An IHA shall have the right to amend its comprehensive

plan (including the action plan) to extend the time for performance

whenever HUD has not provided the amount of assistance set forth in the

comprehensive plan or has not provided the assistance in a timely

manner.

(2) Amendments to needs assessments. The IHA shall amend its plan

by revising its needs assessments whenever it proposes to carry out

activities in its five-year action plan or annual statement that are

not reflected in its current needs assessments (except in the case of

emergencies). The IHA may propose an amendment to its needs

assessments, in connection with the submission of its annual submission

(see Sec. 950.656(b)), or at any other time. These amendments shall be

reviewed by HUD in accordance with Sec. 950.654;

(3) Six-year revision of Comprehensive Plan. Every sixth year

following the initial year of participation, the IHA shall submit to

HUD, with its annual submission, a complete update of its comprehensive

plan. An IHA may elect to revise some or all parts of the comprehensive

plan more frequently.

(4) Annual revision of Five-Year Action Plan. Annually, the IHA

shall submit to HUD, with its annual submission, an update of its five-

year action plan, eliminating the previous year and adding an

additional year. The IHA shall identify changes in work categories

(other than those included in the new fifth year) from the previous

year five-year action plan when making this Annual Submission.

(5) Required submissions. Any amendments to the comprehensive plan

under this section shall be submitted with the IHA resolution under

Sec. 950.652(e)(7).

(f) Prerequisite for receiving assistance. (1) Prohibition of

assistance. No financial assistance, except for emergency work to be

funded under Secs. 950.604(b) and 950.606, and for modernization needs

resulting from disasters under Sec. 950.604(b), may be made available

under this subpart unless HUD has approved a comprehensive plan

submitted by the IHA that meets the requirements of Sec. 950.652. An

IHA that has failed to obtain approval of its comprehensive plan by the

end of the FFY shall have its formula allocation for that year (less

[[Page 8733]]

any formula amounts provided to the IHA for emergencies) added to the

subsequent year's appropriation of funds for grants under this part.

HUD shall allocate such funds to PHAs and IHAs participating in the CGP

in accordance with the formula under Sec. 950.604(e) and (f) in the

subsequent FFY. An IHA that elects in any FFY not to participate in the

CGP under this subpart may participate in the CGP in subsequent FFYs.

(2) Requests for emergency assistance. An IHA may receive funds

from its formula allocation to address emergency modernization needs

even if HUD has not approved the IHA's comprehensive plan. To request

such assistance, the IHA shall submit to HUD a request for funds in

such form as HUD may prescribe, including any documentation necessary

to support its claim that an emergency exists. HUD shall review the

request and supporting documentation to determine if it meets the

definition of ``emergency work,'' as set forth in Sec. 950.102.

Sec. 950.654 HUD review and approval of comprehensive plan (including

Five-Year Action Plan).

(a) Submission of comprehensive plan. (1) Upon receipt of a

comprehensive plan from an IHA, HUD shall determine whether:

(i) The plan contains each of the required components specified at

Sec. 950.652; and

(ii) If applicable, the IHA has submitted any additional

information or assurances required as a result of HUD monitoring,

findings of inadequate IHA performance, audit findings, or civil rights

compliance findings.

(2) Acceptance for review. If the IHA has submitted a Comprehensive

Plan (including the action plan) that meets the criteria specified in

paragraph (a)(1) of this section, HUD shall accept the Comprehensive

Plan for review, within 14 calendar days of its receipt in the Area

ONAP. The IHA shall be notified in writing that the plan has been

accepted by HUD, and that the 75-day review period is proceeding.

(3) Time period for review. A Comprehensive Plan that is accepted

by HUD for review shall be considered to be approved unless HUD

notifies the IHA in writing, postmarked within 75 calendar days of the

date of HUD's receipt of the Comprehensive Plan for review, that HUD

has disapproved the plan. HUD shall not disapprove a Comprehensive Plan

on the basis that it cannot complete its review within the 75-day

deadline.

(4) Rejection of Comprehensive Plan. If an IHA has submitted a

Comprehensive Plan (including the action plan) that does not meet the

requirements of paragraph (a)(1) of this section, HUD shall notify the

IHA within 14 calendar days of its receipt that HUD has rejected the

plan for review. In such case, HUD shall indicate the reasons for

rejection, the modifications required to qualify the Comprehensive Plan

for HUD review, and the deadline date for receipt of any modifications.

(b) HUD approval of Comprehensive Plan (including action plan). (1)

A Comprehensive Plan (including the action plan) that is accepted by

HUD for review in accordance with paragraph (a) of this section shall

be considered to be approved, unless HUD notifies the IHA in writing,

postmarked within 75 days of the date of HUD's receipt of the

Comprehensive Plan for review, that HUD has disapproved the plan,

indicating the reasons for disapproval, and the modifications required

to make the Comprehensive Plan approvable. The IHA shall re-submit the

Comprehensive Plan to HUD, in accordance with the deadline established

by HUD, which may allow up to 75 calendar days before the end of the

FFY for HUD review. If the revised plan is disapproved by HUD following

its resubmission, or the IHA fails to resubmit the plan by the deadline

established by HUD, any funds that would have been allocated to the IHA

shall be added to the subsequent year's appropriation of funds for

grants under this subpart. HUD shall allocate such funds to IHAs and

PHAs participating in the CGP in accordance with the formula under 24

CFR Sec. 950.604 and 968.103. HUD shall not disapprove a Comprehensive

Plan on the basis that HUD cannot complete its review under this

section within the 75-day deadline.

(2) HUD shall approve the comprehensive plan except where it makes

a determination in accordance with one or more of the following:

(i) Comprehensive plan is incomplete in significant matters;

(ii) Identified needs are plainly inconsistent with facts and data;

(A) Identified physical improvements and replacements are

inadequate;

(B) Identified management improvements are inadequate;

(C) Proposed physical and management improvements fail to address

identified needs;

(iii) Action plan is plainly inappropriate to meeting identified

needs;

(iv) Inadequate demonstration of long-term viability at reasonable

cost; or

(v) Contradiction of tribal/local government certification or IHA

resolution.

(c) Effect of HUD approval of Comprehensive Plan. After HUD

approves the Comprehensive Plan (including the Five-Year Action Plan),

or any amendments to the plan, it shall be binding upon HUD and the

IHA, until such time as the IHA submits, and HUD approves, an amendment

to its plan. The IHA is expected to undertake the work set forth in the

Annual Statement. However, the IHA may undertake any of the work

identified in any of the other four years of the latest approved Five-

Year Action Plan, current approved Annual Statement or previously

approved CIAP budgets, without further HUD approval. Actual uses of the

funds are to be reflected in the IHA annual Performance and Evaluation

Report for each grant. See Sec. 950.658. HUD encourages the IHA to

inform the residents of significant changes (such as changes in scope

of work or whenever it moves work items within the approved Five-Year

Action Plan). The IHA shall retain documentation of that information in

its files. If HUD determines as a result of an audit or monitoring

findings that an IHA has provided false or substantially inaccurate

data in its Comprehensive Plan/Annual Submission or has circumvented

the intent of the program, HUD may condition the receipt of assistance,

in accordance with Sec. 950.660. Moreover, in accordance with 18 U.S.C.

1001, any individual or entity who knowingly and willingly makes or

uses a document or writing containing any false, fictitious, or

fraudulent statement or entry, in any matter within the jurisdiction of

any department or agency of the United States, shall be fined not more

than $10,000 or imprisoned for not more than five years, or both.

Sec. 950.656 Annual submission of activities and expenditures.

(a) General. The Annual Submission is a collective term for all

documents that the IHA shall submit to HUD for review and approval

before accessing the current FFY grant funds. Such documents include

the Annual Statement, Work Statements for years two through five of the

Five-Year Action Plan, local government statement, IHA Board

Resolution, materials demonstrating the partnership process, and any

other documents as prescribed by HUD. For planning purposes, an IHA may

use either the amount of funding received in the current year or the

actual formula amount provided in HUD's notification under Sec. 950.650

in

[[Page 8734]]

developing the Five-Year Action Plan for presentation at the resident

meetings and public hearing. Work Statements cover the second through

the fifth years of the Five-Year Action Plan and set forth the major

work categories and costs, by development or IHA-wide, that the IHA

intends to undertake in each year of years two throu

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Streamlining the Comprehensive Improvement Assistance Program and Comprehensive Grant Program · 61 FR 8712 | Frix