[Federal Register Volume 60, Number 76 (Thursday, April 20, 1995)]
[Proposed Rules]
[Pages 19695-19697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9727]



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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Assistant Secretary for Housing-Federal Housing 
Commissioner

24 CFR Part 811

[Docket No. R-95-1779; FR-3692-P-01]
RIN 2502-AG33


Refunding of Tax-Exempt Obligations Issued to Finance Section 8 
Housing

AGENCY: Office of the Assistant Secretary for Housing-Federal Housing 
Commissioner, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the Department's regulations to 
provide the policy and procedural guidelines for Section 8 bond 
refundings under which local agency issuers of Section 11(b) tax-exempt 
bonds are encouraged to refinance projects at lower interest rates.

DATES: Comments due date June 19, 1995.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposed rule to the Office of General Counsel, Rules Docket 
Clerk, room 10276, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC, 20410. Facsimile (FAX) are not 
acceptable. A copy of each communication submitted will be available 
for public inspection and copying on weekdays between 7:30 a.m. and 
5:30 p.m. at the above address.

FOR FURTHER INFORMATION CONTACT: James B. Mitchell, Director, Financial 
Services Division, Department of Housing and Urban Development, 470 
L'Enfant Plaza East, room 3120, Washington, DC 20024; telephone (202) 
755-7450, ext. 125 (TDD number for the hearing- and speech-impaired 
(202) 708-4594).

SUPPLEMENTARY INFORMATION:

I. Background

    Since May 1989, the Department has conducted on an ad hoc basis a 
program of Section 8 assisted housing bond refundings, under which 
local agency issuers of Section 11(b) tax-exempt bonds (24 CFR part 
811, subpart A) are encouraged to refinance projects at lower interest 
rates to reduce Section 8 subsidy. To date, over 400 bond refunding 
transactions have closed in which bonds issued during the interest rate 
peak years of 1980-1983 are prepaid by a new bond issue at 
substantially lower interest cost, resulting in subsidy recapture of 
over $500 million.
    The Section 11(b) regulations under which HUD issues its 
Notification of Tax Exemption were designed for the original financing 
of new construction or substantial rehabilitation of 100 percent or 
partially subsidized Section 8 rental housing. These rules do not in 
all particulars fit a refinancing transaction where construction 
funding is not an element. Therefore, each refunding closing 
transaction has required that bond counsel for the issuing agency 
obtain from the Assistant Secretary for Housing-FHA Commissioner a 
Notification of Tax Exemption that waives several sections of 24 CFR 
part 811, subpart A. This waiver process elevates to the Assistant 
Secretary level a programmatic approval that has become routine and 
perfunctory in recent years. In addition, an Office of Inspector 
General finding (Interim Audit Report 93-HQ-119-0004) has criticized 
the excessive reliance on regulatory waivers to accomplish bond 
refundings.
    In view of the relatively low interest rate environment that has 
prevailed since 1987, HUD has determined that bond refundings should be 
treated as an operational program, rather than a temporary market 
intervention dependent upon the economic cycle. The proposed rule would 
codify the policy and procedural guidelines that have governed Section 
8 bond refundings since 1989, and would provide a self-contained 
refunding regulation intended to dispense with the need for most 
waivers.

II. Other Matters

A. Environmental Impact

    In accordance with 40 CFR 1508.4 of the regulations of the Council 
on Environmental Quality and 24 50.20(k) of the HUD regulations, the 
policies and procedures contained in this proposed rule relate only to 
HUD administrative procedures and, therefore, are categorically 
excluded from the requirements of the National Environmental Policy 
Act.

B. Executive Order 12612, Federalism

    The General Counsel, as the Designated Official under section 6(a) 
of Executive Order 12612, Federalism, has determined that the policies 
contained in this proposed rule will not have federalism implications 
and, thus, are not subject to review under that order.

C. Executive Order 12606, The Family

    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has [[Page 19696]] determined that this 
proposed rule does not have potential for significant impact on family 
formation, maintenance, and general well-being, and, thus, is not 
subject to review under the order. No significant change in existing 
HUD policies or programs will result from promulgation of this proposed 
rule, as those policies and programs relate to family concerns.

D. Regulatory Flexibility Act

    The Secretary, in accordance with the Regulatory Flexibility Act 
has reviewed and approved this proposed rule, and in so doing certifies 
that this proposed rule will not have a significant economic impact on 
a substantial number of small entities. There are no anti-competitive 
discriminatory aspects of the rule with regard to small entities, and 
there are not any unusual procedures that would need to be complied 
with by small entities.

E. Regulatory Agenda

    This proposed rule was listed as sequence number 1779 in the 
Department's Semiannual Agenda of Regulations published on November 14, 
1994 (59 FR 57632, 57634) in accordance with Executive Order 12866 and 
the Regulatory Flexibility Act.

List of Subjects in 24 CFR Part 811

    Public housing, Securities, Taxes.

    Accordingly, 24 CFR part 811 would be amended as follows:

PART 811--TAX EXEMPTION OF OBLIGATIONS OF PUBLIC HOUSING AGENCIES 
AND RELATED AMENDMENTS

    1. The authority citation for 24 CFR part 811 would be revised to 
read as follows:

    Authority: 42 U.S.C. 1437, 1437a, 1437c, 1437f, and 3535(d).

    2. A new Sec. 811.119 would be added to subpart A, to read as 
follows:


Sec. 811.119  Refunding of obligations issued to finance Section 8 
projects.

    (a) This section states the terms and conditions under which HUD 
will approve tax-exempt financing or defeasance of outstanding 
permanent obligations issued under Section 11(b) of the Act or the 
Internal Revenue Code to refund outstanding permanent obligations which 
financed new construction or substantial rehabilitation of Section 8 
projects, including fully and partially assisted projects.
    (b) Other sections of part 811, subpart A, shall not apply to bond 
refundings except that compliance with the following is required: 
Secs. 811.101, 811.102, 811.103, 811.104, 811.105, 811.106(d), 
811.108(a)(2)(ii), 811.108(a)(2)(iii), 811.108(b)(3)(ii), 
811.108(b)(3)(iii), and 811.114(d), except as applicable provisions are 
modified in this section.
    (c) Compliance with Secs. 811.104 and 811.105 shall not be required 
for refunding obligations which derive tax exemption from authority 
other than Section 11(b) of the Act. In the case of bonds issued by 
State Agencies qualified under 24 CFR part 883 to refund bonds which 
financed projects assisted pursuant to 24 CFR part 883, compliance with 
the provisions of 24 CFR part 883 shall be required to the extent bond 
counsel finds such provisions applicable to a bond refunding 
transaction, as distinguished from requirements related to original 
financing of new construction or substantial rehabilitation of Section 
8 housing. HUD requires compliance with the prohibition on duplicative 
fees contained in Sec. 883.606 of this chapter.
    (d) No agency shall issue obligations to refund outstanding 11(b) 
obligations until the Office of the Assistant Secretary for Housing 
sends the financing agency a Notification of Tax Exemption based on 
approval of the proposed refunding's terms and conditions as conforming 
to this subpart A's requirements, including continued operation of the 
project as housing for low-income families, and where possible, 
reduction of Section 8 assistance payments through lower contract rents 
or equivalent means. The agency shall submit such documentation as HUD 
determines is necessary for review and approval of the refunding 
transaction. Upon conclusion of the sale of refunding bonds, the 
results must be certified to HUD by bond counsel, including a schedule 
of the specific amount of savings in Section 8 assistance where 
applicable, and a final statement of Sources and Uses.
    (e) (1) HUD approval of the terms and conditions of a Section 8 
refunding proposal requires evaluation by HUD Central Office of the 
reasonableness of the terms of the Agency's proposed financing plan, 
including projected reductions in project debt service where warranted 
by market conditions and bond yields. This evaluation shall determine 
that the proposed amount of refunding obligations is the amount needed 
to pay off outstanding bonds, fund a debt service reserve to the extent 
required by bond rating agencies which rate the credit quality of the 
refunding bonds, pay credit enhancement fees acceptable to HUD and pay 
transaction costs as approved by HUD according to a sliding scale 
ceiling based on par amount of refunding bond principal. Exceptions may 
be approved by HUD, if consistent with applicable statutes, in the 
event that an additional issue amount is required for project purposes.
    (2) The repayment term of the refunding bonds may not exceed the 
remaining term of the project mortgage, or in the absence of a 
mortgage, the remaining term of the Housing Assistance Payments 
Contract (the ``HAPC'').
    (3) The bond yield may not exceed by more than 75 basis points the 
20 Bond General Obligation Index published by the Daily Bond Buyer for 
the week immediately preceding the sale of the bonds. An amount not to 
exceed one-fourth of one percent annually of the bonds may be allowed 
for servicing and trustee fees.
    (f) For projects placed under HAPC between January 1, 1979, and 
December 31, 1984 (otherwise known as ``McKinney Act Projects''), for 
which a State or local agency initiates a refunding, the Secretary 
shall make available to an eligible issuing agency 50 percent of the 
Section 8 savings of a refunding, as determined by HUD on a project-by-
project basis, to be used by the agency in accordance with the terms of 
a Refunding Agreement executed by the Agency and HUD which incorporates 
the Agency's Housing Plan for use of savings to provide decent, safe, 
and sanitary housing for very low-income households. The Housing Plans 
submitted for HUD review and approval shall address the physical 
condition of the projects participating in the refunding which generate 
the McKinney Act savings and, if necessary, provide for correction of 
existing deficiencies which cannot be funded completely by existing 
project replacement reserves and/or by a portion of refunding bond 
proceeds (including reserves released from the refunded bond's 
indenture), as approved by HUD.
    (g) For refundings of Section 8 projects other than McKinney Act 
Projects, and for all transactions which substitute collateral for, but 
do not redeem, outstanding obligations, the Office of Housing in 
consultation with HUD Field Office Counsel will review the HAPC, the 
Trust Indenture for the outstanding obligations, and the applicable 
part 811 Regulations to determine what HUD approvals are required. In 
particular, HUD approval must be obtained for the release of reserves 
from the trust indenture of the bonds that are being refunded, 
defeased, or pre-paid. If the proposal contemplates distribution to a 
non- [[Page 19697]] Federal entity of benefits of the refinancing, such 
as debt service savings and/or balances in reserves held under the 
original Trust Indenture, such proposal shall be referred to the Office 
of the Assistant Secretary for Housing for further review. HUD will 
consent to release reserves, as provided by the Trust Indenture, in an 
amount remaining after correction of project physical deficiencies and/
or replenishment of replacement reserves, where needed, upon execution 
by the project owner of a use agreement, and amendment of a regulatory 
agreement, if applicable, to extend low-income tenant occupancy for ten 
years after expiration of the HAPC. Proposed use of benefits shall be 
consistent with applicable appropriations law, the HAPC, and other 
requirements applicable to the original project financing, and the 
proposed financing terms must be reasonable in relation to bond market 
yields and transaction fees, as approved by HUD Central Office.
    (h) Agencies shall have wide latitude in the design of specific 
delivery vehicles for use of McKinney Act savings, subject to HUD audit 
of each Agency's performance in serving the targeted income eligible 
population. Savings shall be used for shelter costs of providing 
housing, rental, or owner-occupied, to very low-income households 
through new construction, rehabilitation, repairs, and acquisition with 
or without rehab, including assistance to very low-income units in 
mixed-income developments. Self-sufficiency services in support of very 
low-income housing are also eligible, specifically, homeownership 
counseling, additional security measures in high-crime areas, 
construction job training for residents' repair of housing units 
occupied by very low-income families, and empowerment activities 
designed to support formation and growth of resident entities. Except 
for the cost of providing third-party program audit reports to HUD, 
eligible costs exclude consultant fees or reimbursement of Agency staff 
expenses, even though the services may involve programs of assistance 
to very low-income families.
    (i) Refunding bonds, including interest thereon, approved under 
this Section shall be exempt from all taxation now or hereafter imposed 
by the United States, and the notification of approval of tax exemption 
shall not be subject to revocation by HUD. Such bonds shall be prepaid 
during the HAPC term only under such conditions as HUD shall require.

    Dated: March 20, 1995.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 95-9727 Filed 4-19-95; 8:45 am]
BILLING CODE 4210-27-P