[Federal Register Volume 64, Number 86 (Wednesday, May 5, 1999)]
[Rules and Regulations]
[Pages 24025-24028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11250]


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FEDERAL HOUSING FINANCE BOARD

12 CFR Part 960

[No. 99-26]
RIN 3069-AA-82


Amendment of Affordable Housing Program Regulation

AGENCY: Federal Housing Finance Board.

ACTION: Interim final rule.

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SUMMARY: The Federal Housing Finance Board (Finance Board) is amending 
its regulation governing the operation of the Affordable Housing 
Program (AHP or Program) to make certain technical revisions clarifying 
Program requirements and improving the operation of the AHP.

DATES: The interim final rule shall be effective on June 4, 1999. The 
Finance Board will accept written comments on this interim final rule 
on or before July 6, 1999.

ADDRESSES: Mail comments to Elaine L. Baker, Secretary to the Board, 
Federal Housing Finance Board, 1777 F Street, NW, Washingon DC 20006. 
Comments will be available for inspection at this address.

FOR FURTHER INFORMATION CONTACT: Richard Tucker, Deputy Director, (202) 
408-2848, or Janet M. Fronckowiak, Associate Director, (202) 408-2575, 
Program Assistance Division, Office of Policy, Research and Analysis; 
or Sharon B. Like, Senior Attorney-Advisor, (202) 408-2930, Office of 
General Counsel, Federal Housing Finance Board, 1777 F Street, NW, 
Washington, DC 20006.

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background

    Section 10(j)(1) of the Federal Home Loan Bank Act (Bank Act) 
requires each Federal Home Loan Bank (Bank) to establish a Program to 
subsidize the interest rate on advances to members of the Federal Home 
Loan Bank System engaged in lending for long-term, low-and moderate-
income, owner-occupied and affordable rental housing at subsidized 
interest rates. See 12 U.S.C. 1430(j)(1). The Finance Board is required 
to promulgate regulations governing the operation of the Program. See 
id.
    On August 4, 1997, the Finance Board published a final AHP 
regulation adopting comprehensive revisions to the Program, see 12 CFR 
part 960, which, among other changes, authorized the 12 Banks, rather 
than the Finance Board, to approve applications for AHP subsidies 
beginning January 1, 1998. See 62 FR 41812 (Aug. 4, 1997). On May 20, 
1998, the Finance Board published an interim final rule amending the 
regulation to make certain technical revisions clarifying Program 
requirements and improving the operation of the AHP. See 63 FR 27668 
(May 20, 1998). The interim final rule was adopted as a final rule, 
with several changes, and will become effective June 1, 1999.
    In the course of implementing the changes to the Program under the 
recent revisions to the AHP regulation, the Banks and Finance Board 
staff have identified a number of additional technical issues whose 
resolution would clarify Program requirements and improve the 
effectiveness of the Program. This interim final rule addresses those 
issues. Although the interim final rule will become effective 30 days 
after the date of publication in the Federal Register, the Finance 
Board requests comment on all aspects of the interim final rule during 
a 60-day comment period.

[[Page 24026]]

II. Analysis of the Interim Final Rule

A. Timing of Submission of Amendments to Bank AHP Implementation Plans 
to the Finance Board--Sec. 960.3(b)(4)

    Section 960.3(b)(1) of the AHP regulation requires each Bank's 
board of directors to adopt a written AHP implementation plan setting 
forth the requirements specified in the regulation. See 12 CFR 
960.3(b)(1). Each Bank is required to provide its Advisory Council an 
opportunity to review and make recommendations on the Bank's AHP 
implementation plan and any subsequent amendments to the plan prior to 
adoption of the plan or amendments. See id. Sec. 960.3(b)(3). Section 
960.3(b)(4) of the AHP regulation provides that:

    A Bank shall submit its initial AHP implementation plan, and any 
amendments, to the Finance Board and the Bank's Advisory Council at 
least 60 days prior to distributing requests for applications for 
AHP subsidies for the funding period in which the plan, or 
amendments, will be effective.

See id. Sec. 960.3(b)(4). The Banks adopted their initial plans under 
the revised AHP regulation for the first AHP funding period in 1998, 
and have been submitting amendments to such plans to the Finance Board 
for subsequent AHP funding periods.
    The 60-day requirement in the regulation was intended to give the 
Advisory Councils and the Finance Board sufficient time to review the 
implementation plans and amendments prior to distribution by the Banks 
of AHP application materials to the public. However, the Banks have 
indicated that the 60-day requirement is unworkable as a practical 
matter because, among other reasons, the Banks' Advisory Councils 
generally meet only quarterly. By the time the Advisory Councils have 
met and made their recommendations to the Banks' boards, and the Banks' 
boards have adopted the amendments, the Banks are approaching their 
target dates for sending out AHP application materials to the public. 
Requiring the Banks then to send their final plan amendments to the 
Finance Board and the Advisory Councils 60 days prior to the 
distribution of the AHP application materials to the public would delay 
distribution of the AHP application materials, which in turn would 
deprive potential applicants of adequate notice of the AHP application 
requirements before the applications would be due at the Bank. To avoid 
this result, the Finance Board in 1998 issued a number of waivers of 
the 60-day requirement so that the Banks could meet their target AHP 
application distribution dates.
    While the 60-day period was useful for the initial plan review 
under the newly revised AHP regulation, Finance Board staff's 
experience has been that subsequent amendments to the plans have not 
required a 60-day review period. In any case, the administrative 
convenience afforded by a 60-day review period is outweighed by the 
needs of the users of the Program for timely distribution of AHP 
application materials. Therefore, the Finance Board has decided to 
amend the AHP regulation to correct this timing problem. Accordingly, 
the interim final rule amends Sec. 960.3(b)(4) to require that the 
Banks submit any amendments of their AHP implementation plans to the 
Finance Board within 30 days after the date the Bank's board of 
directors approves the amendments. The interim final rule also deletes 
the requirement that the Banks' final plan amendments be sent to the 
Advisory Councils 60 days prior to the Banks' distribution of the AHP 
application materials, since the Advisory Councils already will have 
had an opportunity to review the proposed plan amendments pursuant to 
Sec. 960.3(b)(3).

B. Timing of Appraisals for Member Real Estate Owned (REO) Properties 
and Properties Upon Which a Member Holds a Mortgage or Lien--
Sec. 960.5(b)(2)(ii)(B)

    Section 960.5(b)(2)(ii)(B) of the AHP regulation provides that:

    The purchase price of property or services, as reflected in the 
project's development budget, sold to the project by a member 
providing AHP subsidy to the project, or, in the case of property, 
upon which such member holds a mortgage or lien, may not exceed the 
market value of such property or services as of the date the 
purchase price for the property or services was agreed upon. In the 
case of real estate owned property sold to a project by a member 
providing AHP subsidy to a project, or property sold to the project 
upon which the member holds a mortgage or lien, the market value of 
such property is deemed to be the ``as-is'' or ``as-rehabilitated'' 
value of the property, whichever is appropriate, as reflected in an 
independent appraisal of the property performed within six months 
prior to the date the purchase price for the property was agreed 
upon.

See id. Sec. 960.5(b)(2)(ii)(B) (emphasis added).
    Section 960.5(b)(2)(ii)(B) is intended to ensure that the AHP 
subsidy is passed on to the ultimate borrower (subsidy pass-through 
requirement), as required by the Bank Act, and thus that the project 
has a need for the AHP subsidy, by requiring that the purchase price of 
the property not exceed its current market value (i.e., that the 
subsidy is not recouped by the member to discharge its mortgage or lien 
through an excessive purchase price paid for the property by the 
project). See 12 U.S.C. 1430(j)(9)(E); 12 CFR 960.5(b)(2)(ii)(B). The 
AHP regulation requires this determination to be made based on an 
appraisal of the market value of the property performed within six 
months prior to the date the purchase price of the property was agreed 
upon (i.e., the sales contract). See 12 CFR 960.5(b)(2)(ii)(B). If the 
purchase price of the property exceeds the current market value, then 
the project sponsor is paying more than necessary for the property, the 
member is receiving more than necessary, and the project does not need 
the AHP subsidy.
    In 1998, several Banks received applications for AHP funding 
involving member REO property or property upon which the member held a 
mortgage or lien, for which no independent appraisals of the property 
had been performed within six months prior to the date the purchase 
price for the property was agreed upon, as required by 
Sec. 960.5(b)(2)(ii)(B). In some instances, the sponsors had agreed to 
a purchase price for the property or had purchased the property two to 
three years before the AHP application due date, with no anticipation 
that they later would be applying for AHP funds in connection with the 
property. Due to the fees of $5,000 or more typically charged for 
independent appraisals and the limited predevelopment funds available 
to pay for such appraisals, many non-profit sponsors with limited 
financial resources conduct in-house analyses or rely upon tax 
assessment values to determine the market value of properties. Sponsors 
are especially reluctant to obtain an independent appraisal when they 
may never exercise the option to purchase the property. In short, given 
the way many sponsors acquire property, the requirements of 
Sec. 960.5(b)(2)(ii)(B) for obtaining an independent appraisal of the 
property within six months prior to the date the purchase price for the 
property was agreed upon are not practical or cost effective in the 
affordable housing industry.
    A reasonable alternative is to require that the sponsor obtain an 
independent appraisal of the property within six months prior to the 
date the Bank disburses AHP subsidies to the project. This would avoid 
the timing problem discussed above but still require a current 
appraisal to ensure that the purchase price of the property does not 
exceed its current market value.
    Accordingly, the interim final rule amends Sec. 960.5(b)(2)(ii)(B) 
to require that the independent appraisal of the

[[Page 24027]]

property obtained by the sponsor be performed within six months prior 
to the date the Bank disburses AHP subsidy to the project. The interim 
final rule also amends this section to require that the independent 
appraisal be completed by a State certified or licensed appraiser, as 
defined in 12 CFR 564.2(j) and (k), in order to ensure a more accurate 
evaluation of the property value.

C. Inclusion of the Creation of Permanent Owner-Occupied Housing Under 
the Housing for Homeless Households Scoring Criterion--
Sec. 960.6(b)(4)(iv)(D)

    Under Sec. 960.6(b)(4)(iv)(D) of the AHP regulation, an application 
may receive scoring points if it involves the creation of rental 
housing, excluding overnight shelters, reserving at least 20 percent of 
the units for homeless households, or the creation of transitional 
housing for homeless households permitting a minimum of six months 
occupancy. See id. Sec. 960.6(b)(4)(iv)(D). The regulation 
inadvertently omitted the creation of permanent owner-occupied housing, 
which was included in the proposed rule amending the AHP regulation. 
See 61 FR 57799, 57824 (Nov. 8, 1996). There have been a number of 
innovative and successful initiatives to move households directly from 
homeless shelters into permanent homeownership through self-help and 
other social services programs. Citing such programs, a Bank commenting 
on the May 20, 1998 interim final rule urged the Finance Board to 
endorse the inclusion of the creation of permanent owner-occupied 
housing under the housing for homeless households scoring criterion.
    Accordingly, the interim final rule amends Sec. 960.6(b)(4)(iv)(D) 
to include the creation of permanent owner-occupied housing reserving 
at least 20 percent of the units for homeless households under the 
housing for homeless households scoring criterion.

D. Specific Inclusion of the Creation of ``Visitable'' Housing Under 
the Special Needs Scoring Criterion--Sec. 960.6(b)(4)(iv)(F)(1)

    Under Sec. 960.6(b)(4)(iv)(F)(1) of the AHP regulation, a Bank may 
choose as one of its scoring criteria under the First District Priority 
scoring category the following:

    Special Needs. The creation of housing in which at least 20 
percent of the units are reserved for occupancy by households with 
special needs, such as the elderly, mentally or physically disabled 
persons, persons recovering from physical abuse or alcohol or drug 
abuse, or persons with AIDS.

See 12 CFR 960.6(b)(4)(iv)(F)(1) (emphasis added). The use of the words 
``such as'' indicates that the specific list of special needs housing 
in the regulation is not exclusive, allowing a Bank the option to 
select other types of special needs housing not specifically mentioned 
but of the general types included in the list.
    The creation of housing that is ``visitable'' by persons with 
physical disabilities who are not occupants of such housing may be 
considered a type of special needs housing that a Bank has the option 
of adopting under the special needs scoring criterion. Although 
amendment of the AHP regulation to allow a Bank to adopt such a 
``visitable'' housing criterion is not necessary, the interim final 
rule amends Sec. 960.6(b)(4)(iv)(F)(1) to specifically include 
``visitable'' housing because the Finance Board believes it is 
important to increase awareness of this significant special needs 
housing as an option for the Banks to consider in adopting their 
scoring criteria under the First District Priority scoring category.
    The interim final rule amends Sec. 960.1 to include a definition of 
``visitable,'' based on the definition of ``visitable'' adopted by the 
Department of Housing and Urban Development, which is as follows:

    In either owner-occupied or rental housing, at least one 
entrance is at-grade (no steps) and approached by an accessible 
route such as a sidewalk, and the entrance door and all interior 
passage doors are at least 2 feet, 10 inches wide, offering 32 
inches of clear passage space.

III. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for this 
interim final rule, the provisions of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.) do not apply.

IV. Paperwork Reduction Act

    This interim final rule does not contain any collections of 
information pursuant to the Paperwork Reduction Act of 1995. See 44 
U.S.C. 3501 et seq. Therefore, the Finance Board has not submitted any 
information to the Office of Management and Budget for review.

V. Notice and Public Participation

    The Finance Board for good cause finds that the notice and public 
comment procedure required by the Administrative Procedure Act is 
impracticable, unnecessary or contrary to the public interest in this 
instance, because the changes made by this interim final rule are 
technical in nature and apply only to the Banks. See 5 U.S.C. 
553(b)(3)(B).

List of Subjects in 12 CFR Part 960

    Credit, Federal home loan banks, Housing, Reporting and 
recordkeeping requirements.
    Accordingly, the Finance Board hereby amends title 12, chapter IX, 
part 960, Code of Federal Regulations, as follows.

PART 960--AFFORDABLE HOUSING PROGRAM

    1. The authority citation for part 960 continues to read as 
follows:

    Authority: 12 U.S.C. 1430(j).

    2. Section 960.1 is amended by adding in alphabetical order the 
following definition to read as follows:


Sec. 960.1  Definitions.

* * * * *
    Visitable means, in either owner-occupied or rental housing, at 
least one entrance is at-grade (no steps) and approached by an 
accessible route such as a sidewalk, and the entrance door and all 
interior passage doors are at least 2 feet, 10 inches wide, offering 32 
inches of clear passage space.
    3. Section 960.3 is amended by revising paragraph (b)(4) to read as 
follows:


Sec. 960.3  Operation of Program and adoption of AHP implementation 
plan.

* * * * *
    (b) * * *
    (4) Submission of plan amendments to the Finance Board. A Bank 
shall submit any amendments of its AHP implementation plan to the 
Finance Board within 30 days after the date the Bank's board of 
directors approves such amendments.
* * * * *
    4. Section 960.5 is amended by revising the second sentence of 
paragraph (b)(2)(ii)(B) to read as follows:


Sec. 960.5  Minimum eligibility standards for AHP projects.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * *
    (B) * * * In the case of real estate owned property sold to a 
project by a member providing AHP subsidy to a project, or property 
sold to the project upon which the member holds a mortgage or lien, the 
market value of such property is deemed to be the ``as-is'' or ``as-
rehabilitated'' value of the property, whichever is appropriate, as 
reflected in an independent appraisal of the property performed by a 
State certified or licensed appraiser, as defined in 12 CFR 564.2(j) 
and (k), within six months prior to the date the

[[Page 24028]]

Bank disburses AHP subsidy to the project.
* * * * *
    5. Section 960.6 is amended by revising paragraphs (b)(4)(iv)(D) 
and (b)(4)(iv)(F)(1) to read as follows:


Sec. 960.6  Procedure for approval of applications for funding.

* * * * *
    (b) * * *
    (4) * * *
    (iv) * * *
    (D) Housing for homeless households. The creation of rental 
housing, excluding overnight shelters, reserving at least 20 percent of 
the units for homeless households, the creation of transitional housing 
for homeless households permitting a minimum of six months occupancy, 
or the creation of permanent owner-occupied housing reserving at least 
20 percent of the units for homeless households.
* * * * *
    (F) * * *
    (1) Special needs. The creation of housing in which at least 20 
percent of the units are reserved for occupancy by households with 
special needs, such as the elderly, mentally or physically disabled 
persons, persons recovering from physical abuse or alcohol or drug 
abuse, or persons with AIDS; or the creation of housing that is 
``visitable'' by persons with physical disabilities who are not 
occupants of such housing;
* * * * *
    Dated: April 14, 1999.

    By the Board of Directors of the Federal Housing Finance Board.
Bruce A. Morrison,
Chairman.
[FR Doc. 99-11250 Filed 5-4-99; 8:45 am]
BILLING CODE 6725-01-P