[Federal Register Volume 61, Number 61 (Thursday, March 28, 1996)]
[Rules and Regulations]
[Pages 13986-13993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7272]
[[Page 13985]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 261, et al.
Consolidated Drug Elimination Program Requirements for Assisted Housing
and Public Housing; Final Rule
Federal Register / Vol. 61, No. 61 / Thursday, March 28, 1996 / Rules
and Regulations
[[Page 13986]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 261, 761, and 961
[Docket No. FR-3997-F-01]
RIN 2501-AC18
Consolidated Drug Elimination Program Requirements for Assisted
Housing and Public Housing
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule consolidates and streamlines HUD's regulations
for the Assisted Housing Drug Elimination Program and the Public
Housing Drug Elimination Program. This rule is part of HUD's efforts to
comply with the President's regulatory reform initiatives. Since the
requirements for the two programs are very similar, this consolidation
will eliminate redundant and unnecessary provisions in HUD's
regulations.
EFFECTIVE DATE: April 29, 1996.
FOR FURTHER INFORMATION CONTACT: For questions concerning the Assisted
Housing Drug Elimination Program (AHDEP), contact: Michael E. Diggs,
Office of Multifamily Housing Programs, Office of Housing, Room 6130,
telephone number (202) 708-0614, ext. 2514.
For questions concerning the Public Housing Drug Elimination
Program (PHDEP), contact: Malcolm E. (Mike) Main, Crime Prevention and
Security Division, Office of Community Relations and Involvement,
Office of Public and Indian Housing, Room 4116, telephone (202) 708-
1197, ext. 4232.
The address for the above persons is: Department of Housing and
Urban Development, 451 Seventh Street, SW., Washington, DC 20410.
Hearing- or speech-impaired persons may call (800) 877-8339 (Federal
Information Relay Service TDD). (Except for the ``800'' number, these
telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
I. Background
The Public Housing Drug Elimination Program was first authorized by
chapter 2, subtitle C, title V of the Anti-Drug Abuse Act of 1988 (42
U.S.C. 11901-11908). The purpose of the Drug Elimination Program is to
make grants for use in eliminating drug-related crime and the problems
associated with it. HUD first issued implementing regulations for this
program in 24 CFR part 961 on July 3, 1990 (55 FR 27598). Under this
original authorization, public housing agencies (PHAs) and Indian
housing authorities (IHAs) were eligible to apply for and receive
grants under the program. (IHAs and PHAs will be collectively referred
to as HAs.)
Section 581 of the National Affordable Housing Act (NAHA) (Pub. L.
101-625, approved November 28, 1990) amended the Public Housing Drug
Elimination Program in a number of ways, and HUD implemented these
amendments through a final rule published on January 7, 1993 (58 FR
3160). As described in the preamble to the January 7, 1993 final rule,
that rule also implemented two amendments to the program from the
Housing and Community Development Act of 1992 (Pub. L. 102-550,
approved October 28, 1992).
In addition to enhancing the Public Housing Drug Elimination
Program, the National Affordable Housing Act included the authorization
for the Assisted Housing Drug Elimination Program. Under the Assisted
Housing Program, HUD can provide grants to private for-profit and
nonprofit owners of Federally assisted low-income housing. For purposes
of the Assisted Housing Drug Elimination Program, NAHA also permits HUD
to establish other criteria, in addition to those applicable to the
Public Housing Drug Elimination Program, for the evaluation of funding
applications submitted by owners of Federally assisted low-income
housing. HUD issued a final rule implementing the Assisted Housing Drug
Elimination Program on January 26, 1995 (60 FR 5280). The January 26,
1995 final rule followed the regulations for the Public Housing Drug
Elimination Program very closely. The main difference from the Public
Housing Program's regulations reflected the flexibility in the
submission requirements and eligible activities provided by NAHA for
the Assisted Housing Program.
II. Regulatory Reinvention
In response to Executive Order 12866 and President Clinton's
memorandum of March 4, 1995 to all Federal departments and agencies on
the subject of regulatory reinvention, HUD has reviewed all its
regulations to determine whether certain regulations can be eliminated,
streamlined, or consolidated with other regulations. As part of this
review, HUD determined that the regulations for the Assisted Housing
Drug Elimination Program and the Public Housing Drug Elimination
Program are very similar, and HUD can consolidate them into one part.
Therefore, this final rule will consolidate the regulations in
parts 261 (Assisted Housing Drug Elimination Program) and 961 (Public
Housing Drug Elimination Program), into one set of regulations in part
761 (in chapter VII of title 24 of the Code of Federal Regulations
(CFR)). Chapter VII of HUD's regulations is an appropriate place for
the Drug Elimination Program regulations, since that chapter has
historically contained those regulations common to programs under the
authority of the Assistant Secretary for Housing--Federal Housing
Commissioner (such as the Assisted Housing Drug Elimination Program)
and to programs under the authority of the Assistant Secretary for
Public and Indian Housing (such as the Public Housing Drug Elimination
Program).
This final rule also streamlines the Drug Elimination Program
regulations to the extent possible. For example, some of the provisions
merely repeat language in the authorizing statute (42 U.S.C. 11901-
11908). It is unnecessary to maintain statutory requirements in the
CFR, since those requirements are otherwise fully accessible and
binding. Furthermore, if regulations contain statutory language, HUD
must amend the regulations whenever Congress amends the statute.
Therefore, this final rule will remove repetitious statutory language
and replace it with a citation to the specific statutory section for
easy reference.
This rule also removes information in the regulations that is
nonregulatory and would more appropriately appear in the separate
Notices of Funding Availability (NOFAs) for the two programs, such as
details about the selection criteria and examples of eligible
activities. This final rule streamlines the regulations to provide that
specific information on these topics will be included in the annual
NOFAs.
Specifically, this final rule accomplishes the following:
1. Consolidates the regulations from parts 261 and 961 into part
761;
2. Removes the definitions of terms that are either not used in the
regulations or are defined in the statute;
3. Removes the nonregulatory examples from the definition of
``program income'' and from the new Sec. 761.15--Applicants and
activities; and
4. Removes statutory language from the new Sec. 761.15--Applicants
and activities.
As a result of the streamlining efforts in this rule, HUD will
eliminate approximately 7 pages of unnecessary regulations from the
CFR.
[[Page 13987]]
II. Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with HUD's regulations on rulemaking
found in 24 CFR part 10. However, part 10 provides for exceptions from
the general rule if the agency finds good cause to omit advance notice
and public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment, in that prior public procedure is unnecessary. This final rule
merely consolidates and streamlines two sets of similar regulations; it
does not change HUD's policies or substantive requirements.
III. Other Matters
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule merely
streamlines regulations by removing unnecessary provisions. The rule
will have no adverse or disproportionate economic impact on small
businesses.
Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends existing regulations by consolidating and
streamlining provisions and does not alter the environmental effect of
the regulations being amended. Separate Findings of No Significant
Impact with respect to the environment were made in accordance with HUD
regulations in 24 CFR part 50 that implement section 102(2)(C) of the
National Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time
of initial development of the regulations for the Drug Elimination
Programs. The findings remain applicable to this rule, and are
available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays in the Office of the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
List of Subjects
24 CFR Part 261
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--low and moderate income housing,
Reporting and recordkeeping requirements.
24 CFR Part 761
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--Indians, Grant programs--low and
moderate income housing, Indians, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 961
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--Indians, Grant programs--low and
moderate income housing, Indians, Public housing, Reporting and
recordkeeping requirements.
Accordingly, under the authority of 42 U.S.C. 3535(d), for the
reasons stated in the preamble, in title 24 of the Code of Federal
Regulations, parts 261 and 961 are removed, and part 761 is added as
follows:
PART 261--[REMOVED]
1. Part 261 is removed.
2. In chapter VII, the heading is revised to read as follows:
CHAPTER VII--OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT (HOUSING ASSISTANCE PROGRAMS AND PUBLIC AND INDIAN HOUSING
PROGRAMS)
3. A new part 761 is added to read as follows:
PART 761--DRUG ELIMINATION PROGRAMS
Subpart A--General
Sec.
761.1 Purpose and scope.
761.5 Public and Indian housing; encouragement of resident
participation.
761.10 Definitions.
Subpart B--Use of Grant Funds
761.15 Applicants and activities.
Subpart C--Application and Selection
761.20 Application selection and requirements.
761.25 Resident comments on grant application.
Subpart D--Grant Administration
761.30 Grant administration.
761.35 Periodic grantee reports.
761.40 Other Federal requirements.
Authority: 42 U.S.C. 3535(d) and 11901 et seq.
Subpart A--General
Sec. 761.1 Purpose and scope.
This part 761 contains the regulatory requirements for the Assisted
Housing Drug Elimination Program and the Public Housing Drug
Elimination Program. The purposes of these programs are to:
(a) Eliminate drug-related crime and problems associated with it in
and around the premises of Federally assisted low-income housing, and
public and Indian housing developments;
(b) Encourage owners of Federally assisted low-income housing,
public housing agencies and Indian housing authorities (collectively
referred to as HAs), and resident management corporations to develop a
plan that includes initiatives that can be sustained over a period of
several years for addressing drug-related crime and problems associated
with it in and around the premises of housing proposed for funding
under this part; and
(c) Make available Federal grants to help owners of Federally
assisted low-income housing, HAs, and RMCs carry out their plans.
Sec. 761.5 Public and Indian housing; encouragement of resident
participation.
For the purposes of the Public Housing Drug Elimination Program,
the elimination of drug-related crime and problems associated with it
within public housing developments requires the active involvement and
commitment of public housing residents and their organizations. To
enhance the ability of HAs to combat drug-related crime and problems
associated with it within their developments, Resident Councils (RCs),
[[Page 13988]]
Resident Management Corporations (RMCs), and Resident Organizations
(ROs) will be permitted to undertake management functions specified in
this part, notwithstanding the otherwise applicable requirements of 24
CFR parts 950 and 964.
Sec. 761.10 Definitions.
The definitions ``Department'', ``HUD'', ``Indian'', ``Indian
Housing Authority (IHA)'', and ``Public Housing Agency (PHA)'' are
defined in 24 CFR part 5.
Controlled substance shall have the meaning provided in section 102
of the Controlled Substance Act (21 U.S.C. 802).
Drug intervention means a process to identify assisted housing or
public housing resident drug users, to assist them in modifying their
behavior, and/or to refer them to drug treatment to reduce or eliminate
drug abuse.
Drug prevention means a process to provide goods and services
designed to alter factors, including activities, environmental
influences, risks, and expectations, that lead to drug abuse.
Drug-related crime shall have the meaning provided in 42 U.S.C.
11905(2).
Drug treatment means a program for the residents of an applicant's
development that strives to end drug abuse and to eliminate its
negative effects through rehabilitation and relapse prevention.
Federally assisted low-income housing, or assisted housing, shall
have the meaning provided in 42 U.S.C. 11905(4). However, sections
221(d)(3) and 221(d)(4) market rate projects with tenant-based
assistance contracts and section 8 projects with tenant-based
assistance are not considered federally assisted low-income housing and
are not eligible for funding under this part 761.
Governmental jurisdiction means the unit of general local
government, State, or area of operation of an Indian tribe in which the
housing development administered by the applicant is located.
In and around means within, or adjacent to, the physical boundaries
of a housing development.
Indian tribe means any tribe, band, pueblo, group, community, or
nation of Indians, or Alaska Natives.
Local law enforcement agency means a police department, sheriff's
office, or other entity of the governmental jurisdiction that has law
enforcement responsibilities for the community at large, including the
housing developments owned or administered by the applicant. In Indian
jurisdictions, this includes tribal prosecutors that assume law
enforcement functions analogous to a police department or the Bureau of
Indian Affairs (BIA). More than one law enforcement agency may have
these responsibilities for the jurisdiction that includes the
applicant's developments.
Problems associated with drug-related crime means the negative
physical, social, educational, and economic impact of drug-related
crime on assisted housing residents or public and Indian housing
residents, and the deterioration of the assisted housing or public and
Indian housing environment because of drug-related crime.
Program income means gross income received by a grantee and
directly generated from the use of program funds. When program income
is generated by an activity only partially assisted with program funds,
the income shall be prorated to reflect the percentage of program funds
used.
Resident council (RC), for purposes of the Public Housing Program,
means an incorporated or unincorporated nonprofit organization or
association that meets each of the following requirements:
(1) It must be representative of the residents it purports to
represent;
(2) It may represent residents in more than one development or in
all of the developments of a HA, but it must fairly represent residents
from each development that it represents;
(3) It must adopt written procedures providing for the election of
specific officers on a regular basis (but at least once every three
years); and
(4) It must have a democratically elected governing board. The
voting membership of the board must consist of residents of the
development or developments that the resident organization or resident
council represents.
Resident Management Corporation (RMC), for purposes of the Public
Housing Program, means the entity that proposes to enter into, or that
enters into, a management contract with a PHA under 24 CFR part 964 in
accordance with the requirements of that part, or with an IHA under 24
CFR part 950, or with an IHA in accordance with the requirements of
this part 761. The corporation must have each of the following
characteristics:
(1) It must be a nonprofit organization that is incorporated under
the laws of the State or the Indian tribe in which it is located;
(2) It may be established by more than one resident organization or
resident council, so long as each such organization or council:
(i) Approves the establishment of the corporation, and;
(ii) Has representation on the Board of Directors of the
corporation;
(3) It must have an elected Board of Directors;
(4) Its by-laws must require the Board of Directors to include
representatives of each resident organization or resident council
involved in establishing the corporation;
(5) Its voting members must be residents of the development or
developments it manages;
(6) It must be approved by the resident council or resident
organization. If there is no council or organization, a majority of the
households of the development must approve the establishment of such an
organization to determine the feasibility of establishing a corporation
to manage the development; and
(7) It may serve as both the resident management corporation and
the resident council or the resident organization, so long as the
corporation meets the requirements of part 964 of this chapter for a
resident council or the requirements of this part for a resident
organization.
Resident organization (RO) shall have the same meaning as Resident
council (RC), as defined in this Sec. 761.10.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public or Indian housing agency under the United States Housing Act of
1937 (42 U.S.C. 1437 note).
Unit of general local government means any city, county, town,
municipality, township, parish, village, local public authority
(including any public or Indian housing agency under the United States
Housing Act of 1937) or other general purpose political subdivision of
a State.
Subpart B--Use of Grant Funds
Sec. 761.15 Applicants and activities.
In any particular funding round, the separate Notices of Funding
Availability (NOFAs) published in the Federal Register will contain
specific information concerning eligible and ineligible applicants and
activities.
(a) Eligible applicants. (1) Under the Public Housing Drug
Elimination Program (PHDEP), specific information with regard to
eligible applicants will appear in the NOFA for each funding round.
(2) Under the Assisted Housing Program (AHDEP), eligible applicants
[[Page 13989]]
are owners of federally assisted low-income housing, as the term
``Federally assisted low-income housing'' is defined in Sec. 761.10.
(b) Eligible activities. An application for funding under the
Assisted Housing Program or the Public Housing Program may be for one
or more of the eligible activities described in 42 U.S.C. 11903, as
further explained or limited in paragraph (b) of this section and in
the separate annual Notices of Funding Availability (NOFAs) for each
program. All personnel funded by these programs in accordance with an
eligible activity must meet, and demonstrate compliance with, all
relevant Federal, State, tribal, or local government insurance,
licensing, certification, training, bonding, or other similar law
enforcement requirements.
(1) Employment of security personnel, as provided in 42 U.S.C.
11903(a)(1). For purposes of the Public Housing Program, the following
provisions in paragraphs (b)(1)(i) and (b)(1)(ii) of this section
apply:
(i) Security guard personnel. (A) Contract security personnel
funded by this program must perform services not usually performed by
local law enforcement agencies on a routine basis.
(B) The applicant, the cooperating local law enforcement agency,
and the provider (contractor) of the security personnel are required,
as a part of the security personnel contract, to enter into and execute
a written agreement that describes the following:
(1) The activities to be performed by the security personnel, their
scope of authority, and how they will coordinate their activities with
the local law enforcement agency;
(2) The types of activities that the security personnel are
expressly prohibited from undertaking.
(ii) Employment of HA police. (A) If additional HA police are to be
employed for a service that is also provided by a local law enforcement
agency, the applicant must provide a cost analysis that demonstrates
the employment of HA police is more cost efficient than obtaining the
service from the local law enforcement agency.
(B) Additional HA police services to be funded under this program
must be over and above those that the existing HA police, if any,
provides, and the tribal, State or local government is contractually
obligated to provide under its Cooperation Agreement with the applying
HA (as required by the HA's Annual Contributions Contract). An
applicant seeking funding for this activity must first establish a
baseline by describing the current level of services provided by both
the local law enforcement agency and the HA police, if any (in terms of
the kinds of services provided, the number of officers and equipment
and the actual percent of their time assigned to the developments
proposed for funding), and then demonstrate to what extent the funded
activity will represent an increase over this baseline.
(C) The applicant and the cooperating local law enforcement agency
are required to enter into and execute a written agreement that
describes the following:
(1) The activities to be performed by the HA police, their scope of
authority, and how they will coordinate their activities with the local
law enforcement agency;
(2) The types of activities that the HA police are expressly
prohibited from undertaking.
(2) Reimbursement of local law enforcement agencies for additional
security and protective services, as provided in 42 U.S.C. 11903(a)(2).
For purposes of the Public Housing Program, the following provisions in
paragraphs (b)(2)(i) and (b)(2)(ii) of this section apply:
(i) Additional security and protective services to be funded must
be over and above those that the tribal, State, or local government is
contractually obligated to provide under its Cooperation Agreement with
the applying HA (as required by the HA's Annual Contributions
Contract). An application seeking funding for this activity must first
establish a baseline by describing the current level of services (in
terms of the kinds of services provided, the number of officers and
equipment, and the actual percent of their time assigned to the
developments proposed for funding) and then demonstrate to what extent
the funded activity will represent an increase over this baseline.
(ii) Communications and security equipment to improve the
collection, analysis, and use of information about drug-related
criminal activities in a public housing community may be eligible items
if used exclusively in connection with the establishment of a law
enforcement substation on the funded premises or scattered site
developments of the applicant. Funds for activities under this section
may not be drawn until the grantee has executed a contract for the
additional law enforcement services.
(3) Physical improvements to enhance security, as provided in 42
U.S.C. 11903(a)(3). For purposes of the Public Housing Program, the
following provisions in paragraphs (b)(3)(i) through (b)(3)(iv) of this
section apply:
(i) An activity that is funded under any other HUD program shall
not also be funded by this program.
(ii) Funding is not permitted for physical improvements that
involve the demolition of any units in a development.
(iii) Funding is not permitted for any physical improvements that
would result in the displacement of persons.
(iv) Funding is not permitted for the acquisition of real property.
(4) Employment of investigating individuals, as provided in 42
U.S.C. 11903(a)(4). For purposes of the Public Housing Program, the
following provisions in paragraphs (b)(4)(i) and (b)(4)(ii) of this
section apply:
(i) If one or more investigators are to be employed for a service
that is also provided by a local law enforcement agency, the applicant
must provide a cost analysis that demonstrates the employment of
investigators is more cost efficient than obtaining the service from
the local law enforcement agency.
(ii) The applicant, the cooperating local law enforcement agency,
and the investigator(s) are required, before any investigators are
employed, to enter into and execute a written agreement that describes
the following:
(A) The nature of the activities to be performed by the
investigators, their scope of authority, and how they will coordinate
their activities with the local law enforcement agency;
(B) The types of activities that the investigators are expressly
prohibited from undertaking.
(5) Voluntary tenant patrols, as provided in 42 U.S.C. 11903(a)(5).
For purposes of the Public Housing Program, the following provisions in
paragraphs (b)(5)(i) through (b)(5)(iv) of this section apply:
(i) The provision of training, communications equipment, and other
related equipment (including uniforms), for use by voluntary tenant
patrols acting in cooperation with officials of local law enforcement
agencies is permitted. Grantees are required to obtain liability
insurance to protect themselves and the members of the voluntary tenant
patrol against potential liability for the activities of the patrol.
The cost of this insurance will be considered an eligible program
expense.
(ii) The applicant, the cooperating local law enforcement agency,
and the members of the tenant patrol are required, before putting the
tenant patrol into effect, to enter into and execute a written
agreement that describes the following:
(A) The nature of the activities to be performed by the tenant
patrol, the patrol's scope of authority, and how the
[[Page 13990]]
patrol will coordinate its activities with the local law enforcement
agency;
(B) The types of activities that a tenant patrol is expressly
prohibited from undertaking, to include but not limited to, the
carrying or use of firearms or other weapons, nightsticks, clubs,
handcuffs, or mace in the course of their duties under this program;
(C) The type of initial tenant patrol training and continuing
training the members receive from the local law enforcement agency
(training by the local law enforcement agency is required before
putting the tenant patrol into effect).
(iii) Tenant patrol members must be advised that they may be
subject to individual or collective liability for any actions
undertaken outside the scope of their authority and that such acts are
not covered under a HA's or RMC's liability insurance.
(iv) Grant funds may not be used for any type of financial
compensation for voluntary tenant patrol participants. However, the use
of program funds for a grant coordinator for volunteer tenant foot
patrols is permitted.
(6) Drug prevention, intervention, and treatment programs, as
provided in 42 U.S.C. 11903(a)(6).
(7) Funding resident management corporations (RMCs), resident
councils (RCs), and resident organizations (ROs). For purposes of the
Public Housing Program, funding may be provided for HAs that receive
grants to contract with RMCs and incorporated RCs and ROs to develop
security and drug abuse prevention programs involving site residents,
as provided in 42 U.S.C. 11903(a)(7).
(8) Eliminating drug-related crime in HA-owned housing, under the
Public Housing Program, as provided in 42 U.S.C. 11903(b).
(c) Continuation of current program activities. For purposes of
both drug elimination programs, the Department will evaluate an
applicant's performance under any previous Drug Elimination Program
grants within the past five years. Subject to evaluation and review are
the applicant's financial and program performance; reporting and
special condition compliance; accomplishment of stated goals and
objectives under the previous grant; and program adjustments made in
response to previous ineffective performance. If the evaluation
discloses a pattern under past grants of ineffective performance with
no corrective measures attempted, it will result in a deduction of
points from the current application.
(d) Ineligible activities. For purposes of the Public Housing
Program, the following provisions in paragraph (d) of this section
apply:
(1) Joint applications are not eligible for funding under this
program.
(2) Funding is not permitted for costs incurred before the
effective date of the grant agreement, including, but not limited to,
consultant fees for surveys related to the application or the actual
writing of the application.
(3) Funding is not permitted for the costs related to screening or
evicting residents for drug-related crime. However, investigators
funded under this program may participate in judicial and
administrative proceedings.
Subpart C--Application and Selection
Sec. 761.20 Application selection and requirements.
(a) Selection criteria. HUD will review each application that it
determines meets the requirements of this part 761 and evaluate it by
assigning points in accordance with the selection criteria in 42 U.S.C.
11904 and in the separate NOFAs published for each program.
(b) Plan requirement. Each application must include a plan for
addressing the problem of drug-related crime and/or the problems
associated with it on the premises of the housing for which the
application is being submitted. For applications that cover more than
one development, the plan does not have to address each development
separately if the same activities will apply to each development. The
plan must address each development separately only where program
activities will differ from one development to another.
(c) Notices of Funding Availability. HUD will publish specific
Notices of Funding Availability (NOFAs) in the Federal Register as
appropriate for each program to inform the public of the availability
of grant amounts under this part 761. The NOFAs will provide specific
guidance with respect to the grant process, including the deadlines for
the submission of grant applications; the limits (if any) on maximum
grant amounts; the information that must be submitted to permit HUD to
score each of the selection criteria; the maximum number of points to
be awarded for each selection criterion; the contents of the plan for
addressing drug-related crime and problems associated with it that must
be included with the application; the listing of any certifications and
assurances that must be submitted with the application; and the process
for ranking and selecting applicants. NOFAs will also include any
additional information, factors, and requirements that HUD has
determined to be necessary and appropriate to provide for the
implementation and administration of the program under this part 761.
(d) Environmental review. Grants under this part 761 are
categorically excluded from review under the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321), in accordance with 24 CFR
50.20(p). However, prior to an award of grant funds under this part,
HUD will perform an environmental review to the extent required by
HUD's environmental regulations in 24 CFR part 50, including the
applicable related authorities in 24 CFR 50.4.
Sec. 761.25 Resident comments on grant application.
The applicant must provide the residents of developments proposed
for funding under this part 761, as well as any RMCs, RCs, or ROs that
represent those residents (including any HA-wide RMC, RC, or RO), if
applicable, with a reasonable opportunity to comment on its application
for funding under these programs. The applicant must give these
comments careful consideration in developing its plan and application,
as well as in the implementation of funded programs. Grantees must
maintain copies of all written comments submitted for three years.
Subpart D--Grant Administration
Sec. 761.30 Grant administration.
(a) General. Each grantee is responsible for ensuring that grant
funds are administered in accordance with the requirements of this part
761, any specific Notices of Funding Availability (NOFAs) issued for
these programs, 24 CFR part 85 (as applicable), applicable laws and
regulations, applicable OMB circulars, HUD fiscal and audit controls,
grant agreements, grant special conditions, the grantee's approved
budget (SF-424A), budget narrative, plan, and activity timetable.
(b) Grant term extensions. (1) Grant term. Terms of the grant
agreement may not exceed 12 months for the Assisted Housing Program,
and 24 months for the Public Housing Program, unless an extension is
approved by the local HUD Office or local HUD Office of Native American
Programs. Any funds not expended at the end of the grant term shall be
remitted to HUD.
(2) Extension. HUD may grant an extension of the grant term in
response to a written request for an extension stating the need for the
extension and indicating the additional time required. HUD will not
consider requests for retroactive extension of program periods. HUD
will permit only one
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extension. HUD will only consider extensions if the grantee meets the
extension criteria of paragraph (b)(5) of this section at the time the
grantee submits for approval the request for the extension.
(3) Receipt. The request must be received by the local HUD Office
or local HUD Office of Native American Programs prior to the
termination of the grant, and requires approval by the local HUD Office
or local HUD Office of Native American Programs with jurisdiction over
the grantee.
(4) Term. The maximum extension allowable for any program period is
6 months.
(5) Extension criteria. The following criteria must be met by the
grantee when submitting a request to extend the expenditure deadline
for a program or set of programs.
(i) Financial status reports. There must be on file with the local
HUD Office or local HUD Office of Native American Programs current and
acceptable Financial Status Reports, SF-269As.
(ii) Grant agreement special conditions. The grantee must have
satisfied all grant agreement special conditions except those
conditions that the grantee must fulfill in the remaining period of the
grant. This also includes the performance and resolution of audit
findings in a timely manner.
(iii) Justification. The grantee must submit a narrative
justification with the program extension request. The justification
must provide complete details, including the circumstances that require
the proposed extension, and an explanation of the impact of denying the
request.
(6) HUD action. The local HUD Office or local HUD Office of Native
American Programs will attempt to take action on any proposed extension
request within 15 days after receipt of the request.
(c) Duplication of funds. To prevent duplicate funding of any
activity, the grantee must establish controls to assure that an
activity or program that is funded by other HUD programs, or programs
of other Federal agencies, shall not also be funded by the Drug
Elimination Program. The grantee must establish an auditable system to
provide adequate accountability for funds that it has been awarded. The
grantee is responsible for ensuring that there is no duplication of
funds.
(d) Insurance. Each grantee shall obtain adequate insurance
coverage to protect itself against any potential liability arising out
of the eligible activities under this part. In particular, applicants
shall assess their potential liability arising out of the employment or
contracting of security personnel, law enforcement personnel,
investigators, and drug treatment providers, and the establishment of
voluntary tenant patrols; evaluate the qualifications and training of
the individuals or firms undertaking these functions; and consider any
limitations on liability under tribal, State, or local law. Grantees
shall obtain liability insurance to protect the members of the
voluntary tenant patrol against potential liability as a result of the
patrol's activities under Sec. 761.15(b)(5). Voluntary tenant patrol
liability insurance costs are eligible program expenses. Subgrantees
shall obtain their own liability insurance.
(e) Failure to implement program. If the grant plan, approved
budget, and timetable, as described in the approved application, are
not operational within 60 days of the grant agreement date, the grantee
must report by letter to the local HUD Office or the local HUD Office
of Native American Programs the steps being taken to initiate the plan
and timetable, the reason for the delay, and the expected starting
date. Any timetable revisions that resulted from the delay must be
included. The local HUD Office or local HUD Office of Native American
Programs will determine if the delay is acceptable, approve/disapprove
the revised plan and timetable, and take any additional appropriate
action.
(f) Sanctions. (1) HUD may impose sanctions if the grantee:
(i) Is not complying with the requirements of this part 761, or of
other applicable Federal law;
(ii) Fails to make satisfactory progress toward its drug
elimination goals, as specified in its plan and as reflected in its
performance and financial status reports;
(iii) Does not establish procedures that will minimize the time
elapsing between drawdowns and disbursements;
(iv) Does not adhere to grant agreement requirements or special
conditions;
(v) Proposes substantial plan changes to the extent that, if
originally submitted, the applications would not have been selected for
funding;
(vi) Engages in the improper award or administration of grant
subcontracts;
(vii) Does not submit reports; or
(viii) Files a false certification.
(2) HUD may impose the following sanctions:
(i) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee;
(ii) Disallow all or part of the cost of the activity or action not
in compliance;
(iii) Wholly or partly suspend or terminate the current award for
the grantee's or subgrantee's program;
(iv) Require that some or all of the grant amounts be remitted to
HUD;
(v) Condition a future grant and elect not to provide future grant
funds to the grantee until appropriate actions are taken to ensure
compliance;
(vi) Withhold further awards for the program; or
(vii) Take other remedies that may be legally available.
Sec. 761.35 Periodic grantee reports.
Grantees are responsible for managing the day-to-day operations of
grant and subgrant supported activities. Grantees must monitor grant
and subgrant supported activities to assure compliance with applicable
Federal requirements and that performance goals are being achieved.
Grantee monitoring must cover each program, function or activity of the
grant.
(a) Semi-annual (nonconstruction) performance reports. For purposes
of the Public Housing Program only, the following provisions in
paragraph (a) of this section apply:
(1) In accordance with 24 CFR 85.40(b)(1)(2) and 85.50(b), grantees
are required to provide the local HUD Office or the local HUD Office of
Native American Programs with a semi-annual performance report that
evaluates the grantee's performance against its plan. These reports
shall include (but are not limited to) the following in summary form:
(i) Any change or lack of change in crime statistics or other
indicators drawn from the applicant's plan assessment and an
explanation of any difference;
(ii) Successful completion of any of the strategy components
identified in the applicant's plan;
(iii) A discussion of any problems encountered in implementing the
plan and how they were addressed;
(iv) An evaluation of whether the rate of progress meets
expectations;
(v) A discussion of the grantee's efforts in encouraging resident
participation; and
(vi) A description of any other programs that may have been
initiated, expanded, or deleted as a result of the plan, with an
identification of the resources and the number of people involved in
the programs and their relation to the plan.
(2) Reporting period. Semi-annual performance reports (for periods
ending June 30 and December 31) are due to the local HUD Office or the
local HUD Office of Native American Programs on July 30 and January 31
of each year. If
[[Page 13992]]
the reports are not received by the local HUD Office or the local HUD
Office of Native American Programs on or before the due date, grant
funds will not be advanced until the reports are received.
(b) Final performance report. For purposes of both the Assisted
Housing Program and the Public Housing Program, the following
provisions in paragraph (b) of this section apply:
(1) Evaluation. Grantees are required to provide the local HUD
Office or the local HUD Office of Native American Programs, as
applicable, with a final cumulative performance report that evaluates
the grantee's overall performance against its plan. This report shall
include (but is not limited to) the information listed in paragraphs
(a)(1)(i) through (a)(1)(vi) of this section, in summary form.
(2) Reporting period. The final performance report shall cover the
period from the date of the grant agreement to the termination date of
the grant agreement. The report is due to the local HUD Office or the
local HUD Office of Native American Programs, as applicable, within 90
days after termination of the grant agreement.
(c) Semi-annual financial status reporting requirements. For
purposes of both the Assisted Housing Program and the Public Housing
Program, the following provisions in paragraph (c) of this section
apply, as specified below:
(1) Forms. The grantee shall provide a semi-annual financial status
report. For purposes of the Public Housing Program, this report shall
be in accordance with 24 CFR 85.41 (b) and (c). For both the Assisted
Housing and Public Housing Programs, the grantee shall use the form SF-
269A, Financial Status Report-Long Form, to report the status of funds
for nonconstruction programs. The grantee shall use SF-269A, block 12,
``Remarks,'' to report on the status of programs, functions, or
activities within the program.
(2) Reporting period. Semi-annual financial status reports (SF-
269A) must be submitted as follows:
(i) For purposes of the Assisted Housing Program, semi-annual
financial status reports covering the first 180 days of funded
activities must be submitted to the local HUD Office between 190 and
210 days after the date of the grant agreement. If the SF-269A is not
received on or before the due date (210 days after the date of the
grant agreement) by the local HUD Office, grant funds will not be
advanced until the reports are received.
(ii) For purposes of the Public Housing Program, semi-annual
financial status reports (for periods ending June 30 and December 31)
must be submitted to the local HUD Office or the local Office of Indian
Programs, as applicable, by July 30 and January 31 of each year. If the
local HUD Office or the local HUD Office of Native American Programs,
as applicable, does not receive the SF-269A on or before the due date,
the grant funds will not be advanced until the reports are received.
(d) Final financial status report (SF-269A). For purposes of both
the Assisted Housing Program and the Public Housing Program, the
following provisions in paragraph (d) of this section apply:
(1) Cumulative summary. The final report will be a cumulative
summary of expenditures to date and must indicate the exact balance of
unexpended funds. The grantee shall remit all Drug Elimination Program
funds owed to HUD, including any unexpended funds, as follows:
(i) For purposes of the Assisted Housing Program, the grantee must
remit such funds to HUD within 90 days after the termination of the
grant agreement.
(ii) For purposes of the Public Housing Program, the local HUD
Office or the local HUD Office of Native American Programs shall notify
the grantee, in writing, of the requirement to remit such funds to HUD.
The grantee shall remit such funds prior to or upon receipt of the
notice.
(2) Reporting period. The final financial status report shall cover
the period from the date of the grant agreement to the termination date
of the grant agreement. The report is due to the local HUD Office or
the local HUD Office of Native American Programs, as applicable, within
90 days after the termination of the grant agreement.
Sec. 761.40 Other Federal requirements.
In addition to the nondiscrimination and equal opportunity
requirements set forth in 24 CFR part 5, subpart A, use of grant funds
requires compliance with the following Federal requirements:
(a) Labor standards. (1) When grant funds are used to undertake
physical improvements to increase security under Sec. 761.15(b)(3), the
following labor standards apply:
(i) The grantee and its contractors and subcontractors must pay the
following prevailing wage rates, and must comply with all related
rules, regulations and requirements:
(A) For laborers and mechanics employed in the program, the wage
rate determined by the Secretary of Labor pursuant to the Davis-Bacon
Act (40 U.S.C. 276a et seq.) to be prevailing in the locality with
respect to such trades;
(B) For laborers and mechanics employed in carrying out nonroutine
maintenance in the program, the HUD-determined prevailing wage rate. As
used in paragraph (a) of this section, nonroutine maintenance means
work items that ordinarily would be performed on a regular basis in the
course of upkeep of a property, but have become substantial in scope
because they have been put off, and that involve expenditures that
would otherwise materially distort the level trend of maintenance
expenses. Nonroutine maintenance may include replacement of equipment
and materials rendered unsatisfactory because of normal wear and tear
by items of substantially the same kind. Work that constitutes
reconstruction, a substantial improvement in the quality or kind of
original equipment and materials, or remodeling that alters the nature
or type of housing units is not nonroutine maintenance.
(ii) The employment of laborers and mechanics is subject to the
provisions of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327-333).
(2) The provisions of paragraph (a)(1) of this section shall not
apply to labor contributed under the following circumstances:
(i) Upon the request of any resident management corporation, HUD
may, subject to applicable collective bargaining agreements, permit
residents (for purposes of the Public Housing Program, residents of a
program managed by the resident management corporation) to volunteer a
portion of their labor.
(ii) An individual may volunteer to perform services if:
(A) The individual does not receive compensation for the voluntary
services, or is paid expenses, reasonable benefits, or a nominal fee
for voluntary services; and
(B) Is not otherwise employed at any time in the work subject to
paragraphs (a)(1)(i)(A) or (a)(1)(i)(B) of this section.
(b) Flood insurance. Grants will not be awarded for proposed
activities that involve acquisition, construction, reconstruction,
repair or improvement of a building or mobile home located in an area
that has been identified by the Federal Emergency Management Agency
(FEMA) as having special flood hazards unless:
(1) The community in which the area is situated is participating in
the National Flood Insurance Program in accordance with 44 CFR parts 59
through 79; or
(2) Less than a year has passed since FEMA notification to the
community regarding such hazards; and
[[Page 13993]]
(3) Flood insurance on the structure is obtained in accordance with
section 102(a) of the Flood Disaster Protection Act of 1973 (42 U.S.C.
4001).
(c) Lead-based paint. The provisions of section 302 of the Lead-
Based Paint Poisoning Prevention Act, 42 U.S.C. 4821-4846, and
implementing regulations in 24 CFR part 965, subpart H apply to
activities under these programs as set out in this paragraph (c).
Paragraph (c) of this section is promulgated pursuant to the authority
granted in 24 CFR 35.24(b)(4) and supersedes, with respect to all
housing to which it applies, the requirements (not including
definitions) prescribed by subpart C of 24 CFR part 35.
(1) Applicability. The provisions of paragraph (c) of this section
shall apply to all developments constructed or substantially
rehabilitated before January 1, 1978, and for which assistance under
this part is being used for physical improvements to enhance security
under Sec. 761.15(b)(3).
(2) Definitions. The term ``applicable surfaces'' means all intact
and nonintact interior and exterior painted surfaces of a residential
structure.
(3) Exceptions. The following activities are not covered by this
section:
(i) Installation of security devices;
(ii) Other similar types of single-purpose programs that do not
involve physical repairs or remodeling of applicable surfaces of
residential structures; or
(iii) Any non-single-purpose rehabilitation that does not involve
applicable surfaces and that does not exceed $3,000 per unit.
(d) Conflicts of interest. In addition to the conflict of interest
requirements in 24 CFR part 85 for the Public Housing Program, no
person, as described in paragraphs (d)(1) and (d)(2) of this section,
may obtain a personal or financial interest or benefit from an activity
funded under these drug elimination programs, or have an interest in
any contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for him or herself or for those with whom
he or she has family or business ties, during his or her tenure, or for
one year thereafter:
(1) Who is an employee, agent, consultant, officer, or elected or
appointed official of the grantee, that receives assistance under the
program and who exercises or has exercised any functions or
responsibilities with respect to assisted activities; or
(2) Who is in a position to participate in a decisionmaking process
or gain inside information with regard to such activities.
(e) For IHAs, Sec. 950.115 of this title, ``Applicability of civil
rights requirements,'' and Sec. 950.120 of this title, ``Compliance
with other Federal requirements,'' apply and control to the extent they
may differ from other requirements of this section;
(f) Indian preference. For purposes of the Public Housing Program,
applicants are subject to the Indian Civil Rights Act (24 U.S.C. 1301),
the provisions of section 7(b) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450e(b)), and the Indian preference
rules in the IHA procurement regulations at 24 CFR 950, subpart B.
These provisions require that, to the greatest extent feasible,
preference and opportunities for training and employment be given to
Indians, and that preference in the award of subcontracts and subgrants
be given to Indian Organizations and Indian Owned Economic Enterprises.
(g) Intergovernmental Review. The requirements of Executive Order
12372 (3 CFR, 1982 Comp., p. 197) and the regulations issued under the
Order in 24 CFR part 52, to the extent provided by Federal Register
notice in accordance with 24 CFR 52.3, apply to these programs.
PART 961--[REMOVED]
4. Part 961 is removed.
Dated: March 15, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-7272 Filed 3-27-96; 8:45 am]
BILLING CODE 4210-32-P