[Senate Report 106-145]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 266

106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-145

======================================================================



 
    PROVIDING TECHNICAL CORRECTIONS TO THE NATIVE AMERICAN HOUSING 
ASSISTANCE AND SELF-DETERMINATION ACT OF 1996, TO IMPROVE THE DELIVERY 
OF HOUSING ASSISTANCE TO INDIAN TRIBES IN A MANNER THAT RECOGNIZES THE 
        RIGHT OF TRIBAL SELF-GOVERNANCE, AND FOR OTHER PURPOSES

                                _______
                                

                August 27, 1999.--Ordered to be printed

   Filed under authority of the order of the Senate of August 5, 1999

_______________________________________________________________________


   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 400]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 400) to provide technical corrections to the Native 
American Housing Assistance and Self-Determination Act of 1996, 
to improve the delivery of housing assistance to Indian tribes, 
in a manner that recognizes the right of tribal self-
governance, and for other purposes, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill as amended do pass.

                                Purposes

    The purpose of S. 400 is to provide technical corrections 
to the Native American Housing Assistance and Self-
Determination Act of 1996, to improve the delivery of housing 
assistance to Indian tribes in a manner that recognizes the 
right of tribal self-governance, and for other purposes.

                               Background

    The United States Housing Act of 1937 created the Public 
Housing Program in order to provide decent and safe housing for 
low-income families. For many years, this act was interpreted 
to exclude Native Americans living in or near tribal areas. It 
was not until the 1960's that Indian housing programs were 
undertaken by the Public Housing Administration, the 
predecessor of the Department of Housing and Urban Development 
(hereinafter ``HUD''). Eventually, HUD assumed responsibility 
for Indian housing programs and in 1988 the Indian Housing Act 
established a separate Indian housing program with regulations 
specific to this program.
    Native American housing is characterized by poor and 
substandard conditions. In fact, Native American housing is the 
worst in the nation and has been justifiably compared to that 
of third world nations. The following statistics demonstrate 
the dire need for both additional and improved Indian housing. 
As determined by the 1990 census, one out of every five Indian 
homes lacks complete plumbing facilities. In addition, forty 
percent (40%) of Native Americans on trust land live in 
overcrowded or physically inadequate housing, compared to six 
percent (6%) of the overall United States population.\1\ 
Finally, the demand for Indian housing is increasing as the 
Native American population continues to grow.
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    \1\ Assessment of American Indian Housing Needs and Programs, Urban 
Institute, May 1996.
---------------------------------------------------------------------------
    In 1996, the Native American Housing Assistance and Self-
Determination Act of 1996 (hereinafter ``NAHASDA'' or the 
``Act''),\2\ was enacted and became effective on October 1, 
1997. NAHASDA reflects the unique government-to-government 
relationship between Indian tribes and the Federal government. 
Before passage of the Act, the planning, financing, and 
building of Indian housing was largely determined at the 
Federal level. NAHASDA now establishes a single, flexible block 
grant for tribes or their tribally designated housing entities 
to administer housing assistance to tribal members. Monitoring 
and oversight of the block grant is provided by HUD. By 
decreasing tribal reliance on federal bureaucracy, NAHASDA is 
consistent with and furthers the principles of tribal self-
determination and self-sufficiency.
---------------------------------------------------------------------------
    \2\ Native American Housing Assistance and Self-Determination Act 
of 1996. Pub. L. 104-330, 25 U.S.C. Sec. 4104-4195 (Supp. 1996).
---------------------------------------------------------------------------
    With the implementation of NAHASDA, the need for 
improvement and clarification of certain provisions of the Act 
has arisen. S. 400 provides clarification and changes to the 
Act to assist tribes and HUD in achieving a smoother transition 
from the old HUD-dominated regime to the new framework of 
NAHASDA. The amendments in S. 400 are derived from hearings 
held by theCommittee on Indian Affairs in both the 105th and 
106th Congress. The hearing held during the 105th Congress was a joint 
hearing before the Committees on Indian Affairs and Banking, Housing 
and Urban Affairs, and focused on the management of Indian housing 
under the old HUD-dominated regime. The hearing in the 106th Congress 
focused on both HUD and the tribes' experience with the implementation 
of NAHASDA.

                      Section-by-Section Analysis

    Sec. 1. Short Title; Table of Contents. The title of this 
bill is the Native American Housing Assistance and Self-
Determination Act Amendments of 1999.
    Sec. 2. Restriction on Waiver Authority. Currently, 
secretarial waivers for Indian housing plans have no time 
limit. The Committee on Indian Affairs believes that unlimited 
waiver authority is inappropriate and could be subject to 
abuse. Thus, the proposed modification to section 101(b)(2) 
places a 90 day limit on the amount of time that the Secretary 
may waive the Indian housing plan requirement. Also, the 
proposed modification would permit such waivers only if the 
Secretary determines that an Indian tribe has not or cannot 
comply with the plan requirements because of ``exigent 
circumstances beyond the control'' of the tribe.
    In addition, section 2 would permit the Secretary to waive 
the local cooperation agreement and exemption from taxation 
requirements if a recipient tribe has made a good faith effort 
to comply with the requirements, yet is unable to do so. Under 
NAHASDA, the Secretary may not make a grant for the use of 
rental or lease-purchase homeownership units on behalf of a 
tribe \3\ unless the tribe and the governing body of the 
locality (within which any housing will be assisted) have 
entered into a local cooperation agreement. Generally, the 
governing body of the locality is either a city or county 
government. Thus, a tribe may be prevented from using grant 
monies for development if a county or city refuses to sign a 
local cooperation agreement. This modification would allow a 
tribe or tribally designated housing entity to receive and 
implement NAHASDA grant funds when there is no local 
cooperation agreement, but only if the tribe negotiated to 
secure an agreement in good faith.\4\ The determination of good 
faith bargaining is subject to judicial review pursuant to the 
Administrative Procedures Act.\5\
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    \3\ 25 U.S.C. Sec. 4111(c)-(d), as amended by H.R. 4194, 105th 
Cong. Sec. 595 (1999) Department of Veterans Affairs and Housing and 
Urban development, and Independent Agencies Appropriations Act, 1999.
    \4\ For a discussion of ``good faith'' negotiations, see N.L.R.B. 
v. Generac Corp., 354 F.2d 625, 638 (7th Cir. 1965).
    \5\ 5 U.S.C.A. Sec. 702 (1996).
---------------------------------------------------------------------------
    The ``Exemption From Taxation'' requirement of section 
101(d) also requires an agreement between the tribe and the 
local governing body (within which any housing will be 
assisted). S. 400 would allow the tribe to use the NAHASDA 
grant for development if the tribe has attempted in good faith, 
but has been unable to achieve an agreement with the local 
governing body. Although the local agreement requirement may be 
waived, the tribe must still make payments in lieu of taxes as 
required under section 101(d)(2).
    Sec. 3. Assistance to Families That Are Not Low-Income. 
This section adds a new paragraph to section 102(c) requiring 
that tribal housing plans include evidence that there is a need 
for housing that cannot be reasonably met without HAHASDA 
assistance when housing is provided for non-low-income families 
under section 201(b)(2). This new requirement for Indian 
housing plans is consistent with the existing section 
201(b)(2), which also requires that before housing can be 
provided for non-low-income families, the Secretary must prove 
that there is a need for housing that cannot reasonably be met 
without such assistance.
    Sec. 4. Elimination of Waiver Authority for Small Tribes. 
This amendment eliminates section 102(f), which authorizes the 
Secretary to establish separate housing plan requirements for 
small tribes. In practice, HUD through the NAHASDA regulations 
has eliminated separate housing plan requirements for small 
tribes.\6\
---------------------------------------------------------------------------
    \6\ See 24 C.F.R. Sec. 1000.222 (1996).
---------------------------------------------------------------------------
    Sec. 5. Labor Standards. This section modifies section 
104(b)(1). Currently, the wage rate of all Indian housing 
assisted under the Act must meet the requirements of the Davis-
Bacon Act.\7\ Under the Davis-Bacon Act, wage rates for 
laborers are determined by the Secretary of Labor in accordance 
with the corresponding wage rate paid to classes of laborers 
employed on projects of a similar character in the locality. 
Thus, tribes or their tribally designated housing entities must 
pay wages that are no less than those prevailing in the local 
area. The construction of tribal housing is often disadvantaged 
by the application of the Davis-Bacon provisions because HUD's 
wage surveys are generally based on considerably higher wages 
earned in larger metropolitan areas with a large population of 
unionized contractors.\8\
---------------------------------------------------------------------------
    \7\ Davis-Bacon Act, 40 U.S.C.A. Sec. 276a (1996).
    \8\ Oversight Hearing to Review the Operation of the Indian Housing 
Programs at the Department of Housing and Urban Development, 105th 
Cong. 11-12 (1997) (Statement of Judy A. England-Joseph, Director, 
GAO).
---------------------------------------------------------------------------
    S. 400 grants tribes and tribally designated housing 
entities a limited, threshold exemption to the application of 
the Davis-Bacon provisions but only if fewer than 12 units of 
housing are to be built. Other HUD programs include a similar 
exception when fewer than 12 housing units are developed. The 
following HUD programs, among other programs, contain the 
``under 12 units'' exception: (1) Section 202 Supportive 
Housing for the Elderly Program, (2) Section 811 Supportive 
Housing for Persons with Disabilities Program, and (3) housing 
under the Home Investment Partnership Program. In addition, the 
Housing Opportunities for Persons with AIDSProgram has a 
complete exemption from Davis-Bacon requirements.
    Application of Davis-Bacon increases the cost of 
construction and ultimately reduces the number of Indian homes 
that are built. On March 12, 1997, at a joint hearing before 
the Senate Committees on Indian Affairs and Banking, Housing 
and Urban Affairs, both Indian housing authorities and HUD 
officials stated that compliance with Davis-Bacon requirements 
burdened Indian housing authorities by increasing the costs of 
construction.\9\ It is estimated that Davis-Bacon requires wage 
rates that are $10.00 per hour higher than those of reservation 
wage rates.\10\ This inflated wage rate increases the cost of 
labor on the reservation. The ultimate result is that fewer 
homes are built in Indian communities. In a community that is 
in dire need of increased and improved housing, compliance with 
Davis-Bacon requirements impedes the maximum capabilities of 
NAHASDA.
---------------------------------------------------------------------------
    \9\ Id.
    \10\ Id.
---------------------------------------------------------------------------
    Sec. 6. Environmental Compliance. This amendment allows the 
Secretary to waive the requirements of the environmental review 
process in certain limited situations, but only if the waiver: 
(1) will not frustrate the National Environmental Policy Act 
(hereinafter ``NEPA''), (2) will not threaten the health or 
safety of the local community by posing an immediate or long-
term hazard, (3) is a result of an inadvertent error, and (4) 
must be corrected through the sole action of the recipient. The 
intent of this language is aimed at procedural or technical 
non-compliance and not substantive non-compliance with 
environmental standards under NEPA.
    This language gives the Secretary discretion to determine 
on case-by-case basis whether a waiver would meet all four 
requirements. Thus, if the Secretary believes that one of these 
requirements is not met, he may determine that a waiver is 
unjustified. Moreover, the determination of procedural non-
compliance is subject to judicial review pursuant to the 
Administrative Procedures Act.\11\
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    \11\ 5 U.S.C.A. Sec. 702 (1996).
---------------------------------------------------------------------------
    Sec. 7. Oversight. This section renames section 209--
``Repayment'' as ``Noncompliance with Affordable Housing 
Activities,'' and clarifies that the Secretary's remedies for 
noncompliance under section 209 (concerning 205(a)(2)--low 
income and income targeting requirements) are governed by the 
amended section 401(a). Under 401(a), the Secretary may still 
reduce payments to tribes consistent with due process 
provisions in the Act.
    This section also amends section 405--``Remedies for 
Noncompliance'' by:
          (a) making applicable the requirements of the Single 
        Audit Act to tribal housing entities. Under the Single 
        Audit, a tribal housing entity will be treated as a 
        non-Federal entity;
          (b) permitting the Secretary to conduct audits to 
        determine whether the grant recipient has carried out 
        eligible activities in a timely manner; met 
        certification requirements; an ongoing capacity to 
        carry out eligible activities in a timely manner; and 
        complied with the proposed housing plan. The Secretary 
        may also conduct audits to verify the accuracy of 
        information contained in any report submitted under 
        section 404. To the extent practicable, the reviews and 
        audits conducted under this subsection are to include 
        onsite visits;
          (c) providing notice to recipients that are subject 
        to Secretarial reports. This notice will inform 
        recipients who have been subject to a report that they 
        may review and comment on the report within 30 days 
        from the date of notice. After the Secretary takes into 
        consideration any comments from the recipient, the 
        Secretary may revise the report. Within 30 days of the 
        Secretary receiving the tribe's comments, the Secretary 
        will make the comments and the report (and any 
        revisions that the Secretary made under section 
        405(c)(2)(A)) readily available to the public; and
          (d) permitting the Secretary, after reviewing reports 
        and audits, to adjust grant amounts made to recipients 
        in accordance with the findings of the Secretary's 
        reports and audits.
    Sec. 8. Allocation Formula. The proposed amendment sets a 
different standard for Indian housing authorities operating 
fewer than 250 units by requiring the amount of assistance 
provided to these tribes to be based on an average of their 
allocations from the proper five (5) fiscal years (fiscal years 
1992 through 1997). Currently, tribes with under 250 units must 
apply for operation and modernization monies annually. 
Modernization monies are based on the amount of assistance 
given to a tribe in fiscal year 1996 for operation and 
modernization. There are two issues that arise from the 
practice of basing modernization monies on 1996 allocations. 
First, if a tribe did not have an allocation in 1996 for 
operation and modernization, then the tribe has no base for 
future modernization monies. Second, if a tribe has built 
additional units since 1996, then the 1996 base money is 
insufficient to meet the current modernization needs of the 
tribe. This new language attempts to give relief to small 
tribes who are dependent on the 1996 allocation of operation 
and modernization monies.
    Sec. 9. Hearing Requirement. NAHASDA requires that before 
the Secretary can take remedial action under section 401, 
reasonable notice and a hearing on the issue of noncompliance 
is required. The new modification provides that the Secretary 
may take immediate remedial action if the Secretary determines 
that the recipient has failed to comply substantially with any 
material provision of the Act resulting in continued federal 
expenditures that are not authorized by law. When the Secretary 
takes this action, he must simultaneously provide notice and 
conduct a hearing within 60 days of this notification.
    Sec. 10. Performance Agreement. With regard to non-
compliance due to technical incapacity, the amendment requires 
the recipient to enter into a ``performance agreement'' with 
the Secretarybefore the Secretary can provide technical 
assistance. This performance agreement must be achieved within one 
year. Upon completion of the one year term, the Secretary must review 
the recipient's performance. If the Secretary determines that the 
recipient has made a good faith effort to meet the compliance 
objectives, then the Secretary may enter into an additional performance 
agreement for another one year period. However, if the Secretary 
determines that the recipient has failed to make a good faith effort to 
meet applicable compliance objectives, then the Secretary shall take 
noncompliance remedial action under section 401(a).
    Sec. 11. Technical and Conforming Amendments. The Table of 
Contents is properly amended. In addition, subsection (b) 
repeals the certification of compliance with subsidy layering 
requirements of section 206 of the Act. NAHASDA recipients will 
still be bound by the organic HUD statute and its subsidy 
layering requirement under section 102(d) of the Department of 
Housing and Urban Development Reform Act of 1989.\12\ In 1999, 
the HUD Appropriations Act attempted to remedy the 
inconsistencies between the organic HUD statute and NAHASDA's 
subsidy layering requirement. To better remedy the situation, 
the new modification completely repeals section 206 of NAHASDA. 
Therefore, any changes to the organic HUD statute will control 
the NAHASDA program and there will be no conflict between HUD's 
organic statute and NAHASDA's provision.
---------------------------------------------------------------------------
    \12\ 42 U.S.C. Sec. 3545(d).
---------------------------------------------------------------------------
    Section 502(a) is amended to deal with Indian housing units 
formerly assisted under the Section 8 program. Although Section 
8 vouchers are not widely used by Indian tribes and Alaska 
Native Corporations, some are significantly impacted by this 
voucher program, including the Navajo Nation and the Cook Inlet 
Regional Corporation in Alaska. S. 400's modification requires 
the counting of Section 8 vouchers under the NAHASDA block 
grant allocation formula to ensure that families currently 
participating in the Section 8 voucher program will continue to 
be funded and that funding will not be eliminated mid-project. 
It is anticipated that ultimately, Section 8 vouchers will be 
phased out.

                          Legislative History

    The Native American Housing Assistance and Self-
Determination Act Amendments of 1999 (S. 400) was introduced on 
February 10, 1999, by Senator Campbell, for himself, and for 
Senator Inouye with Senator Hatch added as a co-sponsor on June 
16, 1999. An earlier and similar version of S. 400, S. 1280 was 
introduced on October 9, 1997 by Senator Campbell, and was 
referred to the Committee on Indian Affairs. S. 400 was 
referred to the Committee on Indian Affairs and a hearing was 
held on the bill on March 17, 1999. On June 16, 1999, the 
Committee on Indian Affairs convened a business meeting to 
consider S. 400 and other measures that had been referred to 
it, and on that date, the Committee reported a substitute 
amendment to S. 400.

            Committee Recommendation and Tabulation of Vote

    On June 16, 1999, the Committee on Indian Affairs, in an 
open business session, adopted an amendment in the nature of a 
substitute to S. 400 by voice vote and ordered the bill, as 
amended, reported favorably to the Senate.

                    Cost and Budgetary Consideration

    The cost estimate for S. 400 as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 14, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 400, the Native 
American Housing Assistance and Self-Determination Act 
Amendments of 1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Carla Pedone.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

S. 400--Native American Housing Assistance and Self-Determination Act 
        Amendments of 1999

    Summary: S. 400 would amend certain provisions of the 
Native American Housing Assistance and Self-Determination Act 
of 1996 (NAHASDA). Most provisions concern participation and 
oversight requirements and enforcement of program rules. Many 
of those provisions have already been implemented under current 
regulations. The bill would also revise the allocation formula 
for the block grants authorized under NAHASDA.
    Although enactment of S. 400 could have some impact on the 
federal cost of administering the programs authorized by 
NAHASDA, that impact is likely to be small. Therefore, CBO 
estimates that enactment of S. 400 would have no significant 
impact on the federal budget. Because the bill would not affect 
direct spending or receipts, pay-as-you-go procedures would not 
apply.
    All provisions of this bill are either excluded from 
consideration under the Unfunded Mandates Reform Act (UMRA) or 
contain no intergovernmental or private-sector mandates as 
defined in that act.
    Basis of Estimate: Several provisions in the bill are 
likely to affect the federal cost of administering the block 
grants authorized by NAHASDA, but the net impact is expected to 
be small. One provision that might decrease administrative 
costs incurred by the Department of Housing and Urban 
Development (HUD) is a change in HUD's review and audit 
requirements. Under current regulations, recipients who spend 
more than $300,000 per year must comply with the Single Audit 
Act of 1984, which requires annual audits by independent 
auditors. In addition, under current law, HUD must review all 
recipients at lest once a year to determine whether they are in 
compliance with program requirements. S. 400 would enact into 
law the regulation requiring audits under the Single Audit Act. 
In addition, S. 400 would provide HUD with the discretion to 
conduct reviews only if the agency deemed them appropriate. CBO 
expects that, as a result, HUD would probably not review all 
recipients every year, which would reduce the amount of staff 
time devoted to such activities.
    Another potential savings would stem from a provision 
governing technical assistance. Under current law, tribes that 
are not in compliance with NAHASDA's provisions and that lack 
technical capacity may receive technical assistance from HUD 
for an indefinite period. S. 400 would typically limit such 
assistance to only one year.
    Some additional costs might result from the bill's 
requirement that HUD conduct a hearing after it starts remedial 
actions in cases where grant recipients are found to expend 
federal funds in unauthorized ways. Under current regulations, 
such hearings are only held at the request of the affected 
recipients. The process leading up to such mandated hearings as 
well as their aftermath would consume extra staff time.
    Intergovernmental and Private-Sector Impact: Section 4 of 
the Unfunded Mandates Reform Act (UMRA) excludes from the 
application of that act any legislative provisions that require 
compliance with accounting and auditing procedures with respect 
to grants or other money or property provided by the federal 
government. CBO has determined that the amendments to section 
405 of NAHASDA fall within that exclusion.
    The other provisions of S. 400 contain no intergovernmental 
or private-sector mandates as defined in UMRA and would not 
affect the budgets of state or local governments. In some 
cases, the budgets of individual tribes may either be increased 
or decreased by the bill, depending upon changes in the 
allocation of housing funds, but total funding would not 
change.
    Estimate Prepared by: Federal Costs: Carla Pedone. Impact 
on State, Local, and Tribal Governments: Leo Lex. Impact on the 
Private Sector: Keith Mattrick.
    Estimate Approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory paperwork impact that would be incurred 
in implementing the legislation. The Committee has concluded 
that enactment of S. 400 will create only de minimis regulatory 
or paperwork burdens.

                        Executive Communications

    The Committee has received no official communication from 
the Administration on the provisions of the bill.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 400 will result in the following changes in 25 
U.S.C. Sec. 1901 et seq., with existing language which is to be 
deleted in black brackets and the new language to be added in 
italic:

                          25 U.S.C. 4111(b)(2)

    (b)(2) Waiver.--The Secretary may waive the applicability 
of the requirements under paragraph (1), in whole or in part, 
[if the Secretary finds that an Indian tribe has not complied 
or cannot comply with such requirements due to circumstances 
beyond the control of the tribe.] if the Secretary determines 
that an Indian tribe has not complied with, or is unable to 
comply with, those requirements due to exigent circumstances 
beyond the control of the Indian tribe.

           *       *       *       *       *       *       *


                           25 U.S.C. 4111(c)

    (c) Local Cooperation Agreement.--The Secretary may not 
make any grant under this Act on behalf of an Indian tribe 
unless the governing body of the locality within which any 
affordable housing assisted with the grant amounts will be 
situated has entered into an agreement with the recipient for 
the tribe providing for local cooperation required by the 
Secretary pursuant to this Act. The Secretary may waive the 
requirements of this subsection and subsection (d) if the 
recipient has made a good faith effort to fulfill the 
requirements of this subsection and subsection (d) and agrees 
to make payments in lieu of taxes to the appropriate taxing 
authority in an amount consistent with the requirements of 
subsection (d)(2) until such time as the matter of making such 
payments has been resolved in accordance with subsection (d).

           *       *       *       *       *       *       *


                           25 U.S.C. 4112(c)

    (c)(6) Certain Families._With respect to assistance 
provided by a recipient to Indian families that are not low-
income families under section 201(b)(2), evidence that there is 
a need for housing for each family during that period that 
cannot reasonably be met without such assistance.

           *       *       *       *       *       *       *


                             25 U.S.C. 4112

    [(f) Plans for Small Tribes.--
          (1) Separate requirements.--The Secretary may--
                  (A) establish requirements for submission of 
                plans under this section and the information to 
                be included in such plans applicable to small 
                Indian tribes and small tribally designated 
                housing entities; and
                  (B) Small tribes.--The Secretary may define 
                small Indian tribes and small tribally 
                designated housing entities based on the number 
                of dwelling units assisted under this title by 
                the tribe or housing entity or owned or 
                operated pursuant to a contract under the 
                United States Housing Act of 1937 between the 
                Secretary and the Indian housing authority for 
                the tribe.]

           *       *       *       *       *       *       *


                          25 U.S.C. 4114(b)(1)

    (b)(1) In General.--Any contract or agreement for 
assistance, sale, or lease relating to 12 or more units of 
housing assisted under this Act pursuant to this chapter shall 
contain a provision requiring that not less than the wages 
prevailing in the locality, as determined or adopted 
(subsequent to a determination under applicable State, tribal, 
or local law) by the Secretary, shall be paid to all 
architects, technical engineers, draftsmen, and technicians 
employed in the development, and all maintenance laborers and 
mechanics employed in the operation, of the affordable housing 
project involved; and shall also contain a provision that not 
less than the wages prevailing in the locality, as 
predetermined by the Secretary of Labor pursuant to the [Davis-
Bacon Act [40 U.S.C. Sec. Sec. 276a to 276a-5]] Act of March 3, 
1931 (commonly known as the ``Davis-Bacon Act'') (46 Stat. 
1494, chapter 411; 40 U.S.C. 276a et seq.) shall be paid to all 
laborers and mechanics employed in the development of the 
affordable housing involved, and the Secretary shall require 
certification as to compliance with the provisions of this 
paragraph before making any payment under such contract or 
agreement.

           *       *       *       *       *       *       *


                             25 U.S.C. 4115

    (d) Environmental Compliance._The Secretary may waive the 
requirements under this section if the Secretary determines 
that a failure on the part of the recipient to comply with 
provisions of this section--
          (1) will not frustrate the goals of the National 
        Environmental Policy Act of 1969 (42 U.S.C. 4331 et 
        seq.) or any other provision of law that furthers the 
        goals of that Act;
          (2) does not threaten the health or safety of the 
        community involved by posing an immediate or long-term 
        hazard to residents of that community;
          (3) is a result of inadvertent error, including an 
        incorrect or incomplete certification provided for 
        under subsection (c)(1); and
          (4) may be corrected through the sole action of the 
        recipient.

           *       *       *       *       *       *       *


                             25 U.S.C. 4139


[4139. Repayment

    If a recipient uses grant amounts to provide affordable 
housing under activities under this subchapter and, at any time 
during the useful life of the housing the housing does not 
comply with the requirement under section 205(2) of this title, 
the Secretary shall reduce future grant payments on behalf of 
the grant beneficiary by an amount equal to the grant amounts 
used for such housing (under the authority under section 
401(1)(a) of this title) or require repayment to the Secretary 
of an amount equal to such grant amounts.]
    (a) Repayment.--If a recipient uses grant amounts to 
provide affordable housing under this title, and at any time 
during the useful life of the housing the recipient does not 
comply with the requirement under section 205(a)(2), the 
Secretary shall take appropriate action under section 401(a).
    (b) Audits and Reviews.--Section 405 of the Native American 
Housing Assistance and Self-Determination Act of 1996 (25 
U.S.C. 4165) is amended to read as follows:

[405. REVIEW AND AUDIT BY SECRETARY.

    (a) Annual Review.--The Secretary shall, not less than on 
an annual basis, make such reviews and audits as may be 
necessary or appropriate to determine--
          (1) whether the recipient has carried out its 
        eligible activities in a timely manner, has carried out 
        its eligible activities and certifications in 
        accordance with the requirements and the primary 
        objectives of this chapter and with other applicable 
        laws, and has a continuing capacity to carry out those 
        activities in a timely manner;
          (2) whether the recipient has complied with the 
        Indian housing plan of the grant beneficiary; and
          (3) whether the performance reports under section 
        4164 of this title of the recipient are accurate.
Reviews under this section shall include, insofar as 
practicable, onsite visits by employees of the Department of 
Housing and Urban Development.
    (b) Report by Secretary.--The Secretary shall give a 
recipient not less than 30 days to review and comment on a 
report under this Subsection. After taking into consideration 
the comments of the recipient, the Secretary may revise the 
report and shall make the comments of the recipient and the 
report, with any revisions, readily available to the public not 
later than 30 days after receipt of the comments of the 
recipient.
    (c) Effect of Reviews.--The Secretary may make appropriate 
adjustments in the amount of the annual grants under this 
chapter in accordance with the findings of the Secretary 
pursuant to reviews and audits under this section. The 
Secretary may adjust, reduce, or withdraw grant amounts, or 
take other action as appropriate in accordance with the reviews 
and audits of the Secretary under this section, except that 
grant amounts already expended on affordable housing activities 
may not be recaptured or deducted from future assistance 
provided on behalf of an Indian tribe.]
    (a) Requirements Under Chapter 75 of Title 31, United 
States Code.--An entity designated by an Indian tribe as a 
housing entity shall be treated, for purposes of chapter 75 of 
title 31, United States Code, as a non-Federal entity that is 
subject to the audit requirements that apply to non-Federal 
entities under that chapter.
    (b) Additional Reviews and Audits.--
          (1) In general.--In addition to any audit or review 
        under subsection (a), to the extent the Secretary 
        determines such action to be appropriate, the Secretary 
        may conduct an audit or review of a recipient in order 
        to--
                  (A) determine whether the recipient--
                          (i) has carried out--
                                  (I) eligible activities in a 
                                timely manner; and
                                  (II) eligible activities and 
                                certification in accordance 
                                with this Act and other 
                                applicable law;
                          (ii) has a continuing capacity to 
                        carry out eligible activities in a 
                        timely manner; and
                          (iii) is in compliance with the 
                        Indian housing plan of the recipient; 
                        and
                  (B) verify the accuracy of information 
                contained in any performance report submitted 
                by the recipient under section 404.
          (2) Onsite visits.--To the extent practicable, the 
        reviews and audits conducted under this subsection 
        shall include onsite visits by the appropriate official 
        of the Department of Housing and Urban Development.
    (c) Review of Reports.--
          (1) In general.--The Secretary shall provide each 
        recipient that is the subject of a report made by the 
        Secretary under this section notice that the recipient 
        may review and comment on the report during a period of 
        not less than 30 days after the date on which notice is 
        issued under thisparagraph.
          (2) Public availability._After taking into 
        consideration any comments of the recipient under 
        paragraph (1), the Secretary--
                  (A) may revise the report; and
                  (B) not later than 30 days after the date on 
                which those comments are received, shall make 
                the comments and the report (with any revisions 
                made under subparagraph (A)) readily available 
                to the public.
    (d) Effect of Reviews._Subject to section 401(a), after 
reviewing the reports and audits relating to a recipient that 
are submitted to the Secretary under this section, the 
Secretary may adjust the amount of a grant made to the 
recipient under this Act in accordance with the findings of the 
Secretary with respect to those reports and audits.

           *       *       *       *       *       *       *


                          25 U.S.C. 4152(d)(1)

    (1) Full Funding.--[The formula]
          (A) In general._Except with respect to an Indian 
        tribe described in subparagraph (B) the formula shall 
        provide that, in any fiscal year, the total amount made 
        available for assistance under this chapter is equal to 
        of greater than the total amount made available for 
        fiscal year 1996 for assistance for the operation and 
        modernization of public housing developed or operated 
        pursuant to a contract between the Secretary and an 
        Indian housing authority pursuant to the United States 
        Housing Act of 1937 [42 U.S.C.A. Sec. 1437 et seq.], 
        the amount provided for such fiscal year for each 
        Indian tribe for which such operating or modernization 
        assistance was provided for fiscal year 1996 shall not 
        be less than the total amount of such operating and 
        modernization assistance provided for fiscal year 1996 
        for such tribe.
          (B) Certain indian tribes._With respect to fiscal 
        year 2000 and each fiscal year thereafter, with respect 
        to any Indian tribe having an Indian housing authority 
        that owns or operates fewer than 250 public housing 
        units, the formula under subparagraph (A) shall provide 
        that if the amount provided for a fiscal year in which 
        the total amount made available for assistance under 
        this Act is equal to or greater than the amount made 
        available for fiscal year 1996 for assistance for the 
        operation and modernization of the public housing 
        referred to in subparagraph (A), then the amount 
        provided to that Indian tribe as modernization 
        assistance shall be equal to the average annual amount 
        of funds provided to the Indian tribe (other than funds 
        provided as emergency assistance) under the assistance 
        program under section 14 of the United States Housing 
        Act of 1937 (42 U.S.C. 1437l) for the period beginning 
        with fiscal year 1992 and ending with fiscal year 1997.

           *       *       *       *       *       *       *


                           25 U.S.C. 4161(a)

    (a) Actions by Secretary Affecting Grant Amounts.--[Except 
as provided] In general._Except as provided in subsection (b) 
of this section, if the Secretary finds after reasonable notice 
and opportunity for hearing that a recipient of assistance 
under this chapter has failed to comply substantially with any 
provision of this chapter, the Secretary shall--
          (1) terminate payments under this chapter to the 
        recipient;
          (2) reduce payments under this chapter to the 
        recipient by an amount equal to the amount of such 
        payments that were not expended in accordance with this 
        chapter;
          (3) limit the availability of payments under this 
        chapter to programs, projects, or activities not 
        affected by such failure to comply; or
          (4) in the case of noncompliance described in section 
        402(b) of this title, provide a replacement tribally 
        designated housing entity for the recipient, under 
        section 402 of this title.
[If the Secretary takes an action under paragraph (1), (2), or 
(3),] (2) Continuance of actions._If the Secretary takes action 
under subparagraph (A), (B), (C) of paragraph (1) the Secretary 
shall continue such action until the Secretary determines that 
the failure to comply has ceased.
    (3) Exception for certain actions._
          (A) In general._Notwithstanding any other provision 
        of this subsection, if the Secretary makes a 
        determination that the failure of a recipient of 
        assistance under this Act to comply substantially with 
        any material provision (as that term is defined by the 
        Secretary) of this Act is resulting, and would continue 
        to result, in a continuing expenditure of Federal funds 
        in a manner that is not authorized by law, the 
        Secretary may take an action described in paragraph 
        (1)(C) before conducting a hearing.
          (B) Procedural requirement._If the Secretary takes an 
        action described in subparagraph (A), the Secretary 
        shall--
                  (i) provide notice to the recipient at the 
                time that the Secretary takes that action; and
                  (ii) conduct a hearing not later than 60 days 
                after the date on which the Secretary provides 
                notice under clause (i).
          (C) Determination._Upon completion of a hearing under 
        this paragraph, the Secretary shall make a 
        determination regarding whether to continue taking the 
        action that is the subject of the hearing, or take 
        another action under this subsection.

           *       *       *       *       *       *       *


                           25 U.S.C. 4161(b)

    (b) Noncompliance Because of Technical Incapacity.--[If the 
Secretary] In general._If the Secretary makes a finding under 
subsection (a) of this section, but determines that the failure 
to comply substantially with the provisions of this chapter--
          [(1) is not] (A) is not a pattern or practice of 
        activities constituting willful noncompliance, and
          [(2) is a result] (B) is a result of the limited 
        capability or capacity of the recipient,
the Secretary may provide technical assistance for the 
recipient (directly or indirectory) that is designed to 
increase the capability and capacity of the recipient to 
administer assistance provided under this chapter in compliance 
with the requirements under this chapter if the recipient 
enters into a performance agreement with the Secretary that 
specifies the compliance objectives that the recipient will be 
required to achieve by the termination date of the performance 
agreement; and
    (2) Performance agreement._The period of a performance 
agreement described in paragraph (1) shall be for a year.
    (3) Review._Upon the termination of performance agreement 
entered into under paragraph (1), the Secretary shall review 
the performance of the recipient that is a party to the 
agreement.
    (4) Effect of review._If, on the basis of a review under 
paragraph (3), the Secretary determines that the recipient--
          (A) has made a good faith effort to meet the 
        compliance objectives specified in the agreement, the 
        Secretary may enter into an additional performance 
        agreement for the period specified in paragraph (2); 
        and
          (B) has failed to make a good faith effort to meet 
        applicable compliance objectives, the Secretary shall 
        determine the recipient to have failed to comply 
        substantially with this Act, and the recipient shall be 
        subject to an action under subsection (a).

           *       *       *       *       *       *       *


                             25 U.S.C. 4136


[SEC. 206 CERTIFICATION OF COMPLIANCE WITH SUBSIDY LAYERING 
                    REQUIREMENTS.

    [With respect to housing assisted with grant amounts 
provided under this chapter, the requirements of section 
3545(d) of Title 42 shall be considered to be satisfied upon 
certification by a recipient to the Secretary that the 
combination of Federal assistance provided to the housing 
project involved is not any more than is necessary to provide 
affordable housing.]

           *       *       *       *       *       *       *


                           25 U.S.C. 4181(a)

    (a) Termination of Assistance.--After September 30, 1997, 
financial assistance may not be provided under the United 
States Housing Act of 1937 [42 U.S.C.A. Sec. 1437 et seq.] or 
pursuant to any commitment entered into under such Act, for 
Indian housing development or operated pursuant to a contract 
between the Secretary and an Indian housing authority, unless 
such assistance is provided from amounts made available for 
fiscal year 1997 and pursuant to a commitment entered into 
before September 30, 1997. Any housing that is the subject of a 
contract for tenant-based assistance between the Secretary and 
an Indian housing authority that is terminated under this 
section shall, for the following fiscal year and each fiscal 
year thereafter, be considered to be a dwelling unit under 
section 302(b)(1).

                                
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