[Federal Register Volume 69, Number 61 (Tuesday, March 30, 2004)]
[Rules and Regulations]
[Pages 16758-16768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7122]



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Part VI





Department of Housing and Urban Development





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24 CFR Parts 91 and 92



HOME Investment Partnerships Program; American Dream Downpayment 
Initiative; Interim Rule

  Federal Register / Vol. 69, No. 61 / Tuesday, March 30, 2004 / Rules 
and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 91 and 92

[Docket No. FR-4832-I-01]
RIN 2501-AC93


HOME Investment Partnerships Program; American Dream Downpayment 
Initiative

AGENCY: Office of the Secretary, HUD.

ACTION: Interim rule.

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SUMMARY: This interim rule establishes regulations for a new 
downpayment assistance component under the HOME Investment Partnerships 
Program, referred to as the American Dream Downpayment Initiative 
(ADDI). Through the ADDI, HUD will make formula grants to participating 
jurisdictions under the HOME Investment Partnerships Program for the 
purpose of assisting low-income families achieve homeownership. This 
interim rule codifies the statutory formula for allocation of ADDI 
funds to HOME participating jurisdictions, identifies eligible 
activities and costs under the ADDI, and establishes other applicable 
requirements.

DATES: Effective Date: April 29, 2004.
    Comment Due Date: June 1, 2004.

ADDRESSES: Interested persons are invited to submit comments regarding 
this rule to the Regulations Division, Office of General Counsel, Room 
10276, Department of Housing and Urban Development, 451 Seventh Street, 
SW., Washington, DC 20410-0500. Electronic comments may be submitted 
through Regulations.gov (www.regulations.gov). Communications should 
refer to the above docket number and title. Facsimile (FAX) comments 
are not acceptable. A copy of each communication submitted will be 
available for public inspection and copying between 8 a.m. and 5 p.m. 
weekdays at the above address.

FOR FURTHER INFORMATION CONTACT: Virginia Sardone, Director, Program 
Policy Division, Office of Affordable Housing Programs, Room 7164, 
Department of Housing and Urban Development, 451 Seventh Street, SW., 
Washington, DC 20410-7000; telephone (202) 708-2470. (This is not a 
toll-free number.) A telecommunications device for hearing- and speech-
impaired persons (TTY) is available at 800-877-8339 (Federal 
Information Relay Service).

SUPPLEMENTARY INFORMATION:

I. Background

    The HOME Investment Partnerships Program (HOME Program) is 
authorized under Title II of the Cranston-Gonzalez National Affordable 
Housing Act (Pub. L. 101-625, approved November 28, 1990) (NAHA). 
Through the HOME Program, HUD allocates funds by formula among eligible 
state and local governments to strengthen public-private partnerships 
and to expand the supply of decent, safe, sanitary, and affordable 
housing for very low-income and low-income families. Generally, HOME 
funds must be matched by nonfederal resources. State and local 
governments that become participating jurisdictions may use HOME funds 
to carry out multiyear housing strategies through acquisition, 
rehabilitation, and new construction of housing, and through tenant-
based rental assistance. Participating jurisdictions may provide 
assistance in a number of eligible forms, including grants, loans, 
advances, equity investments, interest subsidies, and other forms of 
assistance that HUD approves. HUD's regulations for the HOME Program 
are located in 24 CFR part 92.
    The American Dream Downpayment Act (title I of Pub. L. 108-186, 
approved December 16, 2003) (ADDI statute) established a separate 
formula under the HOME Program by which HUD allocates funds to states 
that are participating jurisdictions under the HOME Program and to 
participating jurisdictions within those states for the purpose of 
making downpayment assistance to low-income families who are first-time 
homebuyers for the purchase of single family housing that will serve as 
the family's principal residence. The ADDI statute revised section 271 
of NAHA to establish specific statutory requirements for administration 
of ADDI, including the allocation of funds.
    With respect to allocation of funds, the ADDI statute establishes a 
formula that is based primarily on the need for assistance to 
homebuyers (but does not include the prior commitment requirement from 
the Fiscal Year (FY) 2003 formula), as measured by the percentage of 
low-income households residing in rental housing within the 
participating jurisdiction. This formula will govern the allocation of 
ADDI funds for FY2004 (and subsequent fiscal years). Among other 
requirements, the ADDI statute also establishes the definitions 
applicable to the ADDI, authorizes the use of ADDI funds for certain 
rehabilitation costs completed in conjunction with ADDI downpayment 
assistance, establishes new Consolidated Plan requirements, and 
prescribes other requirements regarding the allocation and use of ADDI 
funds. Through the statutory requirement that participating 
jurisdictions have a plan for conducting targeted outreach to public 
housing tenants and to families receiving rental assistance from public 
housing agencies, the ADDI statute envisions that among the low-income 
families who will move from rental to homeownership, are those who are 
currently public housing residents or receiving rental assistance. ADDI 
provides a much-needed resource to participating jurisdictions to 
assist low-income families achieve the dream of homeownership.
    Prior to the enactment of the ADDI statute, the Consolidated 
Appropriations Resolution, 2003 (Pub. L. 108-7, approved February 20, 
2003) authorized and appropriated FY2003 funds for assistance to 
homebuyers under the HOME Program. The Consolidated Appropriations 
Resolution, 2003 requires that the FY2003 ADDI funds be made available 
in accordance with a formula, to be established by HUD, that considers 
a participating jurisdiction's need for, and prior commitment to, 
assistance to homebuyers. With the exception of consideration of 
``prior commitment'' to assistance to homebuyers, the formula 
established by the ADDI statute satisfies the formula to be established 
for allocating FY2003 funds to participating jurisdictions for 
assistance to homebuyers, as described in Section H of the preamble.

II. This Interim Rule

    This interim rule amends HUD's regulations for the HOME Program to 
establish the policies and procedures governing the ADDI. The ADDI 
regulations will be contained in a new subpart M of 24 CFR part 92. 
This interim rule establishes the formula for allocation of ADDI 
funding to HOME participating jurisdictions, identifies eligible 
activities and costs under the ADDI, and establishes other applicable 
requirements.
    To the greatest extent possible, this interim rule establishes a 
single set of regulatory requirements for FY2003 ADDI funds and those 
appropriated for subsequent fiscal years. To assist the public in 
determining the differences in the applicable regulatory requirements, 
section IV of this preamble contains a chart that provides a side-by-
side comparison of the ADDI requirements based on the source of funds.
    This section of the preamble provides an overview of the specific 
regulatory provisions established by this interim rule:

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A. Definitions

    This interim rule codifies the definitions that apply to the ADDI 
in Sec.  92.2, which contains the definitions applicable to the HOME 
Program. The definitions currently contained in Sec.  92.2 apply to the 
ADDI. In addition, the interim rule establishes several new definitions 
that will apply to the ADDI.
    As noted above, the purpose of the ADDI is to make downpayment 
assistance for the purchase of a principal residence available to low-
income families who are first-time homebuyers. The current HOME Program 
regulations contain definitions and requirements regarding ``low-income 
families'' and ``principal residence'' that apply to the ADDI. 
Specifically, Sec.  92.2 defines the term ``low-income families'' to 
mean families whose annual incomes do not exceed 80 percent of the 
median income for the area as determined by HUD, with adjustments for 
smaller and larger families. Further, the current HOME Program 
regulations at Sec.  92.254(a) (3) and (4) establish ``principal 
residence'' requirements applicable to homeownership assistance, which 
would also apply to the ADDI.
    In addition to the definitions currently contained in the current 
HOME Program regulations, the following definitions will apply to the 
ADDI:
    1. First-time homebuyer. ADDI downpayment assistance may only be 
used to assist low-income families who are ``first-time homebuyers.'' 
Section 104 of NAHA defines the term ``first-time homebuyer'' for 
purposes of the HOME Program. This definition is no longer codified in 
the HOME regulations since the ``first-time homebuyer'' requirement 
that was originally applicable to the HOME Program was removed by 
statutory amendment. Given enactment of the ADDI, HUD is again 
codifying the statutory definition of ``first-time homebuyer'' in Sec.  
92.2. Accordingly, this interim rule provides that the term ``first-
time homebuyer'' means an individual and his or her spouse who have not 
owned a home during the three-year period prior to purchase of a home 
with ADDI assistance.
    In accordance with section 104 of NAHA, the term ``first-time 
homebuyer'' includes an individual who is a ``displaced homemaker'' or 
``single parent'' and who, even if while a homemaker or married, owned 
a home with his or her spouse or resided in a home owned by the spouse. 
Section 104 of NAHA establishes statutory definitions of the terms 
``displaced homemaker'' and ``single parent,'' and this interim rule 
codifies these definitions in Sec.  92.2. Specifically, the interim 
rule provides that a ``displaced homemaker'' means an individual who: 
(1) Is an adult; (2) has not worked full-time full-year in the labor 
force for a number of years but has, during such years, worked 
primarily without remuneration to care for the home and family; and (3) 
is unemployed or underemployed and is experiencing difficulty in 
obtaining or upgrading employment. A ``single parent'' is defined to 
mean an individual who: (1) Is unmarried or legally separated from a 
spouse; and (2) has one or more minor children for whom the individual 
has custody or joint custody, or is pregnant.
    2. Single family housing. ADDI assistance may be used for the 
purchase and rehabilitation of single family housing. The ADDI statute 
establishes a definition of the term ``single family housing'' that 
closely tracks the definition currently used in Sec.  92.254 of the 
HOME Program regulations. (Section 92.254 contains the affordability 
requirements for HOME Program homeownership assistance.) To reflect the 
broadened applicability of this defined term, the interim rule moves 
the definition of ``single family housing'' from Sec.  92.254 to the 
HOME Program definitions section at Sec.  92.2. Specifically, the 
interim rule defines ``single family housing'' to mean a one-to four-
family residence, condominium unit, cooperative unit, combination of 
manufactured housing and lot, or manufactured housing lot.
    3. State. Under the HOME Program, the term ``state'' means any 
state of the United States, the District of Columbia, the Commonwealth 
of Puerto Rico, or any agency or instrumentality thereof that is 
established pursuant to legislation and designated by the chief 
executive officer to act on behalf of the state with regard to the 
provisions of this part. The ADDI statute, however, establishes a 
separate definition of ``state'' that excludes Puerto Rico. 
Accordingly, this interim rule clarifies that, for purposes of the ADDI 
(beginning with FY2004 ADDI funding), the term ``state'' does not 
include the Commonwealth of Puerto Rico.

B. Eligible Activities

    ADDI funds may be used for downpayment assistance towards the 
purchase of single family housing by low-income families who are first-
time homebuyers. ADDI funds may also be used for the rehabilitation of 
the housing acquired with ADDI assistance. Home repair or 
rehabilitation costs include items: (1) Identified in an appraisal or 
home inspection; or (2) are completed within one year of the purchase 
of the home and are necessary to bring the housing into compliance with 
health and safety housing codes, including the reduction of lead paint 
hazards and the remediation of other home health hazards. The amount of 
ADDI funds used for rehabilitation may not exceed 20 percent of the 
participating jurisdiction's ADDI formula allocation.

C. Eligible Project Costs

    ADDI funds may be used for eligible project costs, including: (1) 
The costs of acquiring single family housing; (2) the eligible 
development hard costs for rehabilitation projects described in Sec.  
92.206(a) of the HOME Program regulations; (3) the costs for reduction 
of lead paint hazards and the remediation of other home health hazards; 
and (4) specified related ``soft costs'' (i.e., reasonable and 
necessary costs incurred by the homebuyer or participating jurisdiction 
associated with the financing of single family housing). ADDI funds may 
not be used for any costs related to new construction of housing or 
rental assistance.

D. Forms of Investment

    ADDI provides low-income families homeownership assistance to 
enable them to achieve the personal and financial benefits of 
homeownership. A participating jurisdiction may invest ADDI funds as 
interest-bearing loans or advances, non-interest bearing loans or 
advances, interest subsidies consistent with the purposes of the ADDI, 
deferred payment loans, grants, or other forms of assistance that HUD 
determines to be consistent with the ADDI. Each participating 
jurisdiction has the right to establish the terms of assistance, 
subject to the requirements of the ADDI regulations. It is expected 
that the ADDI funds will not result in a diminution of private sector 
efforts to increase homeownership.

E. Minimum and Maximum Amount of Assistance

    The minimum amount of ADDI funds in combination with HOME funds 
that must be invested in a project is $1,000. The amount of ADDI 
assistance provided to any family may not exceed the greater of six 
percent of the purchase price of a single family housing unit or 
$10,000. Participating jurisdictions may choose to provide families 
less than the maximum amount in order to assist as many families as 
possible.

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F. Limitations on Subrecipients and Contractors

    The ADDI statute prohibits seller-financed organizations from 
participating in the ADDI as subrecipients or contractors. 
Specifically, a participating jurisdiction may not use any amount of 
its ADDI grant to provide funding to an entity or organization that 
provides downpayment assistance if the activities of that entity or 
organization are financed in whole or in part, directly or indirectly, 
by contributions, service fees, or other payments from the sellers of 
housing, whether or not made in connection with the sale of specific 
housing acquired with ADDI funds.
    Some seller-financed organizations have artificially inflated the 
interest fees charged to homebuyers in excess of the amount necessary 
to compensate sellers for their payment of certain closing charges or 
contributions to the cost of the downpayment. The intent of the 
statutory prohibition, which is codified by this interim rule, is to 
curb this predatory lending practice. The prohibition on the 
participation by seller-financed organizations will help to ensure that 
ADDI funds are used to assist low-income homebuyers and not diverted to 
these potentially predatory transactions.

G. ADDI Allocation Formula

    HUD will provide ADDI funds to participating jurisdictions in 
amounts determined by the statutory allocation formula. The formula is 
codified in Sec.  92.604 of this interim rule. In accordance with the 
formula, HUD will provide ADDI funds to each state in an amount that is 
equal to the percentage of the national total of low-income households 
residing in rental housing in the state, as determined on the basis of 
the most recent available U.S. census data. HUD notes that the ADDI 
statute does not include any provision for providing ADDI funds to 
insular areas.
    HUD will further allocate to each local participating jurisdiction 
located within a state an amount equal to the percentage of the state-
wide total of low-income households residing in rental housing in such 
participating jurisdiction, as determined on the basis of the most 
recent available U.S. census data. These allocations will be made only 
if the local participating jurisdiction: (1) Has a total population of 
150,000 individuals or more (as determined on the basis of the most 
recent available U.S. census data); or (2) would receive an allocation 
of $50,000 or more. An allocation that would otherwise be made to a 
local participating jurisdiction that does not meet either of these two 
requirements will revert back to the state in which the participating 
jurisdiction is located. A consortium with members in more than one 
state will receive an allocation from each state in which a member of 
the consortium is located, if the consortium meets one of these 
threshold requirements.
    In calculating ADDI formula allocations, HUD must rely on special 
tabulation data provided by the U.S. Census Bureau that measures the 
number of low-income households residing in rental housing in each 
participating jurisdiction. The U.S. Census Bureau adjusts all special 
tabulation data in order to protect respondent confidentiality. Due to 
these adjustments, the special tabulation data sometimes does not 
correspond exactly to the information provided on the more widely 
available Summary File 3 (SF3) data set prepared by the U.S. Census 
Bureau. The SF3 provides comprehensive population and housing 
information from the Decennial Census Sample Characteristics form (the 
census ``long form''). To address any discrepancies, HUD will adjust 
the special tabulation data at the census tract level so that it 
matches the SF3 data.

H. Allocation of FY2003 ADDI Funds

    As noted above in this preamble, the Consolidated Appropriations 
Resolution, 2003 requires that in allocating FY2003 ADDI funds, HUD 
must consider two factors--the participating jurisdiction's need for, 
and prior commitment to, assistance to homebuyers. This interim rule 
addresses these requirements applicable to FY2003 ADDI funds as 
follows:
    1. Need. The need of the participating jurisdiction for assistance 
to homebuyers is measured by its ADDI formula allocation, as described 
in Sec.  92.604. The allocation of FY2003 ADDI funds to local 
participating jurisdictions is subject to the same population and 
allocation amount thresholds that apply to the allocation of FY2004 
(and subsequent fiscal year) ADDI funds. Specifically, a local 
participating jurisdiction will receive an FY2003 ADDI fund allocation 
only if the participating jurisdiction has a total population of 
150,000 individuals or more, or if it would receive an allocation of 
$50,000 or more.
    2. Prior commitment. Only those participating jurisdictions that 
have demonstrated prior commitment to assistance to homebuyers will 
receive FY2003 ADDI funds. A participating jurisdiction has 
demonstrated prior commitment to homebuyers if it has previously 
committed funds to such purpose under the HOME program, the Community 
Development Block Grants (CDBG) program, mortgage revenue bonds, or 
existing funding from state and local governments.

I. Reallocations

    If any funds allocated to a participating jurisdiction under the 
ADDI become available for reallocation, the funds will be reallocated 
in the next fiscal year to participating jurisdictions in accordance 
with the formula described in Sec.  92.604.

J. Consolidated Plan

    In order to receive an ADDI Formula allocation, a participating 
jurisdiction must address the use of the ADDI funds in its Consolidated 
Plan submitted in accordance with 24 CFR part 91. Because the FY2003 
ADDI funds are being awarded in FY2004, the participating 
jurisdiction's Consolidated Plan will cover both FY2003 and FY2004 ADDI 
funds.
    As noted above in this preamble, the ADDI statute established new 
Consolidated Plan requirements regarding the use of ADDI funds. This 
interim rule amends HUD's Consolidated Plan regulations to conform to 
the new statutory requirements. The interim rule requires that a 
participating jurisdiction that will receive ADDI funding must provide 
certain information in its Consolidated Plan. The participating 
jurisdiction must provide an action plan that includes:
    1. A description of the planned use of the ADDI funds;
    2. A plan for conducting targeted outreach to residents and tenants 
of public and manufactured housing, and to other families assisted by 
public housing agencies, for the purpose of ensuring that the ADDI 
funds are used to provide downpayment assistance for such residents, 
tenants, and families; and
    3. A description of the actions to be taken to ensure the 
suitability of families receiving ADDI assistance to undertake and 
maintain homeownership, such as provision of housing counseling to 
homebuyers.
    These requirements are intended to provide suitable public housing 
tenants and families receiving rental assistance the opportunity to 
move from dependence on rental housing assistance to homeownership. HUD 
anticipates that ADDI funds will be used in conjunction with other 
programs designed to assist such families achieve homeownership, such 
as the voucher

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homeownership option under HUD's Housing Choice Voucher Program (see 24 
CFR part 982, subpart M).
    In furtherance of the goals of the ADDI, HUD encourages 
participating jurisdictions to provide some form of pre-or post-
purchase housing counseling in conjunction with ADDI assistance. HUD's 
study on homebuyer activity through the HOME Program indicates that a 
large majority (between 85 and 94 percent, depending on the type of 
program) of HOME-funded homebuyer programs require some form of 
homeownership counseling. The study indicates that participating 
jurisdictions and counselors have concluded that a combination of group 
and individual housing counseling is optimal for homebuyer programs. A 
copy of the study, entitled ``Study of Homebuyer Activity through the 
HOME Investments Partnerships Program'' is available for download at 
http://www.huduser.org/publications/hsgfin/homebuy.html.

K. Eligible Administrative Costs and Planning Costs

    This interim rule amends Sec.  92.207 of the HOME program 
regulations to clarify that a participating jurisdiction may expend 
HOME funds for payment of reasonable administrative and planning costs 
associated with the use of ADDI funds. Because FY2003 ADDI funds are 
HOME funds set aside for downpayment assistance, for only FY2003 the 
administrative cost amount may not exceed 10 percent of the sum of the 
regular HOME allocation plus the ADDI allocation. While ADDI funds may 
not be used for administrative costs, HOME funds may be used for such 
purpose.

L. Applicability of Other Provisions

    The interim rule also specifies the other provisions of the HOME 
Program regulations that apply to the ADDI. Unless otherwise noted in 
new subpart M, other HOME Program requirements do not apply to the 
ADDI. The ADDI statute specifies the statutory HOME requirements that 
apply to the ADDI. Where HUD has been granted the discretion to 
determine the applicability of particular requirements, it has 
attempted to exclude those HOME requirements that are either 
incompatible with downpayment assistance or rehabilitation (such as, 
for example, requirements concerning rental projects) or that would be 
unduly burdensome in the administration of such assistance.
    The following provides an overview of the HOME Program regulations 
that apply to the ADDI.
    1. General provisions. The general provisions contained in subpart 
A of 24 CFR part 92 apply to the ADDI.
    2. Program requirements. Certain program requirements contained in 
subpart E of 24 CFR part 92 apply to the ADDI. Specifically, the 
private-public partnership provisions (Sec.  92.200), the distribution 
of assistance requirements (Sec.  92.201), the income determination 
requirements (Sec.  92.203), and the requirements regarding pre-award 
costs (Sec.  92.212) apply to the ADDI. The matching contribution 
requirements contained in Sec. Sec.  92.218-92.222 apply to FY 2003 
ADDI funds only.
    3. Project requirements. Certain project requirements contained in 
subpart F of 24 CFR part 92 apply to the ADDI. Specifically, the 
interim rule clarifies that the maximum per-unit subsidy limits and the 
subsidy layering requirements contained in Sec.  92.250 apply to the 
total HOME and ADDI funds in a project. Further, the interim rule 
provides that housing assisted with ADDI funds must meet the property 
standards contained in Sec.  92.251. In addition, housing assisted with 
ADDI funds is required to meet the affordability requirements contained 
in Sec.  92.254(a) and (c). If a project receives both HOME and ADDI 
funds, the total of HOME and ADDI funds in the project is used for 
calculating the period of affordability described in Sec.  92.254(a)(4) 
and applied to resales (Sec.  92.254(a)(5)(i)) and recaptures (Sec.  
92.254(a)(5)(ii)).
    4. Other federal requirements. The interim rule provides that the 
federal requirements contained in subpart H of 24 CFR part 92 regarding 
nondiscrimination, minority outreach, environmental review, labor, 
lead-based paint abatement, conflicts of interest, and consultant 
activities are applicable to the ADDI. The other federal requirements 
contained in subpart H, regarding affirmative marketing and Executive 
Order 12372 (entitled ``Intergovernmental Review''), do not pertain to 
downpayment assistance or rehabilitation and, therefore, do not apply 
to the ADDI.
    The ADDI statute exempts FY2004 and subsequent fiscal year ADDI 
funds from the uniform displacement, relocation, and acquisition 
requirements contained in Sec.  92.353 implementing the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act (42 
U.S.C. 4201-4655) and the implementing regulations at 49 CFR part 24. 
However, the displacement, relocation, and acquisition requirements do 
apply to FY2003 ADDI funds.
    5. Program administration. Generally, the program administration 
requirements contained in subpart K of 24 CFR part 92 are applicable to 
the ADDI, except for those few requirements that are incompatible with 
downpayment assistance, rehabilitation, or other requirements of the 
interim rule.
    6. Performance Review and sanctions. HUD will review the 
performance of participating jurisdictions in carrying out its 
responsibilities under the ADDI, in accordance with the policies and 
procedures contained in subpart L of 24 CFR part 92.

IV. Side-by-Side Comparison of ADDI Requirements Based on Source of 
Funds

    The following chart provides a side-by-side comparison of the ADDI 
requirements based on the source of funds:
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V. Justification for Interim Rulemaking

    HUD generally publishes a rule for public comment before issuing a 
rule for effect, in accordance with its own regulations on rulemaking 
in 24 CFR part 10. However, part 10 provides for exceptions to the 
general rule if the agency finds good cause to omit advanced notice and 
public participation. The good cause requirement is satisfied when 
prior public procedure is ``impractical, unnecessary, or contrary to 
the public interest'' (see 24 CFR 10.1). For the following reasons, HUD 
has determined that it would be contrary to the public interest to 
delay the effectiveness of this rule in order to solicit prior public 
comments.
    As noted throughout this preamble, the ADDI statute establishes 
very specific requirements governing the allocation and eligible uses 
of ADDI funds. For example, the ADDI statute prescribes the formula 
that must be used to allocate ADDI funds, specifies the statutory HOME 
requirements that apply to the ADDI, establishes the eligible uses of 
ADDI funds, and specifies several limits and thresholds on the 
allocation and use of ADDI funds (for example, the thresholds for 
allocating funds to local participating jurisdictions and the cap on 
the amount of downpayment assistance that may be provided to 
homebuyers). To a large extent, this interim rule merely codifies the 
statutory policies and procedures mandated by the ADDI statute, and HUD 
would not have the discretion to modify these requirements in response 
to public comment.
    HUD has more flexibility in defining the two statutory factors for 
the allocation of FY2003 ADDI funds. However, since these factors will 
only govern a single fiscal year of ADDI funding, HUD has attempted (as 
much as possible consistent with statutory authority) to use a single 
set of formula factors for allocating ADDI funds. Given the limited 
applicability of the FY2003 requirements, to delay issuance of an 
effective rule to solicit prior public comment on these factors would 
be of limited use, impose additional complexity and administrative 
burden into the ADDI, and unnecessarily delay the allocation of FY2003 
ADDI funds to participating jurisdictions.
    In other areas where HUD has been granted discretion, HUD has 
attempted to minimize the administrative burden imposed on 
participating jurisdiction by incorporating the ADDI into the existing 
regulatory framework for the HOME Program. Accordingly, the interim 
rule imposes few, if any, unfamiliar requirements on HOME participating 
jurisdictions.
    Although HUD believes that good cause exists to publish this rule 
for effect without prior public comment, HUD recognizes the value of 
public comment in the development of its regulations. HUD has, 
therefore, issued these regulations on an interim basis and has 
provided the public with a 60-day comment period. HUD welcomes comments 
on the regulatory amendments made by this interim rule. The public 
comments will be addressed in the final rule.

VI. Findings and Certifications

Regulatory Planning and Review

    The Office of Management and Budget (OMB) reviewed this rule under 
Executive Order 12866 (entitled ``Regulatory Planning and Review''). 
OMB determined that this rule is a ``significant regulatory action'' as 
defined in section 3(f) of the Order (although not an economically 
significant regulatory action, as provided under section 3(f)(1) of the 
Order). Any changes made to the rule subsequent to its submission to 
OMB are identified in the docket file, which is available for public 
inspection in the Regulations Division, Room 10276, Office of General 
Counsel, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Washington, DC 20410-0500.

Information Collection Requirements

    The information collection requirements contained in this interim 
rule have been approved by the Office of Management and Budget (OMB) in 
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520) and assigned OMB control number 2506-0171. An agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless the collection displays a currently 
valid OMB control number.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on state, local, and 
tribal governments and the private sector. This interim rule does not 
impose any federal mandate on any state, local, or tribal government or 
the private sector within the meaning of UMRA.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits, to the 
extent practicable and permitted by law, an agency from promulgating a 
regulation that has federalism implications and either imposes 
substantial direct compliance costs on state and local governments and 
is not required by statute or preempts state law, unless the relevant 
requirements of section 6 of the Executive Order are met. This rule 
does not have federalism implications and

[[Page 16765]]

does not impose substantial direct compliance costs on state and local 
governments or preempt state law within the meaning of the Executive 
Order.

Impact on Small Entities

    The Secretary, in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), has reviewed and approved this interim rule and in so 
doing certifies that this rule will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. First, the majority of jurisdictions that are statutorily 
eligible to receive HOME formula allocations are relatively larger 
cities, counties or states. The interim rule will not impose any new 
regulatory requirements on participating jurisdictions, since the ADDI 
will operate within the existing regulatory framework of the HOME 
Program. Rather, the interim rule establishes the policies and 
procedures that HUD will use to make formula grants to participating 
jurisdictions under the new ADDI.
    Notwithstanding HUD's determination that this rule will not have a 
significant economic impact on a substantial number of small entities, 
HUD specifically invites comments regarding less burdensome 
alternatives to this rule that will meet HUD's objectives as described 
in this preamble.

Environmental Impact

    A Finding of No Significant Impact with respect to the environment 
has been made in accordance with HUD regulations at 24 CFR part 50, 
which implement section 102(2)(C) of the National Environmental Policy 
Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant 
Impact is available for public inspection between the hours of 8 a.m. 
and 5 p.m. weekdays in the Regulations Division, Office of General 
Counsel, Room 10276, Department of Housing and Urban Development, 451 
Seventh Street, SW., Washington, DC 20410-0500.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for the HOME 
Program is 14.239.

List of Subjects

24 CFR Part 91

    Aged, Grant programs--housing and community development, Homeless, 
Individuals with disabilities, Low and moderate income housing, 
Reporting and recordkeeping requirements.

24 CFR Part 92

    Administrative practice and procedure, Grant programs--housing and 
community development, Low- and moderate-income housing, Manufactured 
homes, Rent subsidies, Reporting and recordkeeping requirements.

0
Accordingly, HUD amends 24 CFR parts 91 and 92 as follows:

PART 91--CONSOLIDATED SUBMISSONS FOR COMMUNITY PLANNING AND 
DEVELOPMENT PROGRAMS

0
1. The authority citation for 24 CFR part 91 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d), 3601-3619, 5301-5315, 11331-11388, 
12701-12711, 12741-12756, and 12901-12912.


0
2. Add Sec.  91.220(g)(2)(iv) to read as follows:


Sec.  91.220  Action plan.

* * * * *
    (g) * * *
    (2) * * *
    (iv) If the participating jurisdiction will receive funding under 
the American Dream Downpayment Initiative (ADDI) (see 24 CFR part 92, 
subpart M), it must include:
    (A) A description of the planned use of the ADDI funds;
    (B) A plan for conducting targeted outreach to residents and 
tenants of public and manufactured housing and to other families 
assisted by public housing agencies, for the purposes of ensuring that 
the ADDI funds are used to provide downpayment assistance for such 
residents, tenants, and families; and
    (C) A description of the actions to be taken to ensure the 
suitability of families receiving ADDI funds to undertake and maintain 
homeownership.
* * * * *

0
3. Add Sec.  91.320(g)(2)(iv) to read as follows:


Sec.  91.320  Action plan.

* * * * *
    (g) * * *
    (2) * * *
    (iv) If the state will receive funding under the American Dream 
Downpayment Initiative (ADDI) (see 24 CFR part 92, subpart M), it must 
include:
    (A) A description of the planned use of the ADDI funds;
    (B) A plan for conducting targeted outreach to residents and 
tenants of public and manufactured housing and to other families 
assisted by public housing agencies, for the purposes of ensuring that 
the ADDI funds are used to provide downpayment assistance for such 
residents, tenants, and families; and
    (C) A description of the actions to be taken to ensure the 
suitability of families receiving ADDI funds to undertake and maintain 
homeownership, such as provision of housing counseling to homebuyers.
* * * * *

PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM

0
4. The authority citation for 24 CFR part 92 continues to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 12701-12839.


0
5. In Sec.  92.2, add definitions of the terms ``ADDI funds,'' 
``displaced homemaker'', ``first time homebuyer,'' ``single family 
housing,'' and ``single parent'' in alphabetical order, and revise the 
definition of ``state'', to read as follows:


Sec.  92.2  Definitions.

* * * * *
    ADDI funds means funds made available under subpart M through 
allocations and reallocations.
* * * * *
    Displaced homemaker means an individual who:
    (1) Is an adult;
    (2) Has not worked full-time full-year in the labor force for a 
number of years but has, during such years, worked primarily without 
remuneration to care for the home and family; and
    (3) Is unemployed or underemployed and is experiencing difficulty 
in obtaining or upgrading employment.
* * * * *
    First-time homebuyer means an individual and his or her spouse who 
have not owned a home during the three-year period prior to purchase of 
a home with assistance under the American Dream Downpayment Initiative 
(ADDI) described in subpart M of this part. The term first-time 
homebuyer also includes an individual who is a displaced homemaker or 
single parent, as those terms are defined in this section.
* * * * *
    Single family housing means a one-to four-family residence, 
condominium unit, cooperative unit, combination of manufactured housing 
and lot, or manufactured housing lot.
    Single parent means an individual who:
    (1) Is unmarried or legally separated from a spouse; and

[[Page 16766]]

    (2) Has one or more minor children of whom the individual has 
custody or joint custody, or is pregnant.
* * * * *
    State means any state of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any agency or 
instrumentality thereof that is established pursuant to legislation and 
designated by the chief executive officer to act on behalf of the state 
with regard to the provisions of this part; however, for purposes of 
the American Dream Downpayment Initiative (ADDI) described in subpart M 
of this part, the term ``state'' does not include the Commonwealth of 
Puerto Rico (except for FY2003 ADDI funds).
* * * * *

0
6. In Sec.  92.207, revise the introductory paragraph to read as 
follows:


Sec.  92.207  Eligible administrative and planning costs.

    A participating jurisdiction may expend, for payment of reasonable 
administrative and planning costs of the HOME program and ADDI, an 
amount of HOME funds that is not more than ten percent of the sum of 
the Fiscal Year HOME basic formula allocation plus any funds received 
in accordance with Sec.  92.102(b) to meet or exceed participation 
threshold requirements that Fiscal Year. A state that transfers any 
HOME funds in accordance with Sec.  92.102(b) must exclude these funds 
in calculating the amount it may expend for administrative and planning 
costs. A participating jurisdiction may also expend, for payment of 
reasonable administrative and planning costs of the HOME program and 
the ADDI described in subpart M of this part, a sum up to ten percent 
of the program income deposited into its local account or received and 
reported by its state recipients or subrecipients during the program 
year. A participating jurisdiction may expend such funds directly or 
may authorize its state recipients or subrecipients, if any, to expend 
all or a portion of such funds, provided total expenditures for 
planning and administrative costs do not exceed the maximum allowable 
amount. Reasonable administrative and planning costs include:
* * * * *

0
7. Revise the first sentence of Sec.  92.250(a) to read as follows:


Sec.  92.250  Maximum per-unit subsidy amount and subsidy layering.

    (a) Maximum per-unit subsidy amount. The total amount of HOME funds 
and ADDI funds that a participating jurisdiction may invest on a per-
unit basis in affordable housing may not exceed the per-unit dollar 
limitations established under section 221(d)(3)(ii) of the National 
Housing Act (12 U.S.C. 17151(d)(3)(ii)) for elevator-type projects that 
apply to the area in which the housing is located. ***
* * * * *

0
8. In Sec.  92.254, revise paragraph (a)(1) and the second sentence in 
paragraph (a)(2)(iii), to read as follows:


Sec.  92.254  Qualification as affordable housing: homeownership.

    (a) * * *
    (1) The housing must be single family housing.
    (2) * * *
    (iii) * * * The participating jurisdiction must set forth the price 
for different types of single family housing for the jurisdiction. ***
* * * * *

0
9. Add Subpart M to read as follows:

Subpart M--American Dream Downpayment Initiative

Sec.
92.600 Purpose.
92.602 Eligible activities.
92.604 ADDI allocation formula.
92.606 Reallocations.
92.608 Consolidated plan.
92.610 Program requirements
92.612 Project requirements.
92.614 Other Federal requirements.
92.616 Program administration.
92.618 Performance reviews and sanctions.


Sec.  92.600  Purpose.

    This subpart describes the requirements for the HOME Program 
American Dream Downpayment Initiative (ADDI). Through the ADDI, HUD 
makes formula grants to participating jurisdictions that qualify for 
allocations to assist low-income families achieve homeownership in 
accordance with the provisions of this subpart. Unless otherwise noted 
in this subpart, the HOME Program requirements contained in subparts B 
through L of this part do not apply to the ADDI.


Sec.  92.602  Eligible activities.

    (a) Eligible activities. ADDI funds may only be used for:
    (1) Downpayment assistance towards the purchase of single family 
housing by low-income families who are first-time homebuyers; and
    (2) Rehabilitation that is completed in conjunction with the home 
purchase assisted with ADDI funds. The rehabilitation assisted with 
ADDI funds, including the reduction of lead paint hazards and the 
remediation of other home health hazards, must be completed within one 
year of the purchase of the home. Total rehabilitation shall not exceed 
20 percent of the participating jurisdiction's ADDI fiscal year formula 
allocation. FY2003 ADDI funds may not be used for rehabilitation.
    (b) Eligible project costs. ADDI funds may be used for the 
following eligible costs:
    (1) Acquisition costs. The costs of acquiring single family 
housing.
    (2) Rehabilitation costs. The eligible development hard costs for 
rehabilitation projects described in Sec.  92.206(a) and the costs for 
reduction of lead paint hazards and the remediation of other home 
health hazards. FY2003 ADDI funds may not be used for rehabilitation.
    (3) Related soft costs. Reasonable and necessary costs incurred by 
the homebuyer or participating jurisdiction and associated with the 
financing of single family housing acquisition and rehabilitation. 
These costs include, but are not limited to:
    (i) Costs to process and settle the financing for purchase of a 
home, such as private lender origination fees, credit report fees, fees 
for title evidence, fees for recordation and filing of legal documents, 
attorneys fees, and private appraisal fees.
    (ii) Architectural, engineering, or related professional services 
required to prepare plans, drawings, specifications, or work write-ups.
    (iii) Costs to provide information services, such as fair housing 
information to prospective homeowners.
    (iv) Staff and overhead costs directly related to carrying out the 
project, such as work specifications preparation, loan processing 
inspections, and other services related to assisting a potential 
homebuyer (e.g., housing counseling), which may be charged to project 
costs only if the individual purchases single family housing with ADDI 
assistance.
    (v) Costs of environmental review and release of funds (in 
accordance with 24 CFR part 58) that are directly related to the 
project.
    (4) Ineligible costs. ADDI funds may not be used for the 
development costs (hard costs or soft costs) of new construction of 
housing or for rental assistance.
    (c) Forms of investment. A participating jurisdiction may invest 
ADDI funds as interest-bearing loans or advances, non-interest bearing 
loans or advances, interest subsidies consistent with the purposes of 
this subpart, deferred payment loans, grants, or other forms of 
assistance that HUD determines to be consistent with this subpart. Each 
participating jurisdiction has the right to

[[Page 16767]]

establish the terms of assistance, subject to the requirements of this 
subpart.
    (d) Minimum amount of assistance. The minimum amount of ADDI funds 
in combination with HOME funds that must be invested in a project is 
$1,000.
    (e) Maximum amount of assistance. The amount of ADDI funds provided 
to any family shall not exceed the greater of six percent of the 
purchase price of the single family housing or $10,000. This limitation 
does not apply to FY2003 ADDI funds.
    (f) Limitation on subrecipients and contractors. A participating 
jurisdiction may not provide ADDI funds to an entity or organization 
that provides downpayment assistance, if the activities of that entity 
or organization are financed in whole or in part, directly or 
indirectly, by contributions, service fees, or other payments from the 
sellers of housing, whether or not made in conjunction with the sale of 
specific housing acquired with ADDI funds.


Sec.  92.604  ADDI allocation formula.

    (a) General. HUD will provide ADDI funds to participating 
jurisdictions in amounts determined by the formula described in this 
section.
    (b) Allocation to states that are participating jurisdictions. HUD 
will provide ADDI funds to each state in an amount that is equal to the 
percentage of the national total of low-income households residing in 
rental housing in the state, as determined on the basis of the most 
recent available U.S. census data (as adjusted by HUD).
    (c) Local participating jurisdictions. Subject to paragraph (d) of 
this section, HUD will further allocate to each local participating 
jurisdiction located within a state an amount equal to the percentage 
of the state-wide total of low-income households residing in rental 
housing in such participating jurisdiction, as determined on the basis 
of the most recent available U.S. census data (as adjusted by HUD).
    (d) Limitation on allocations to local participating jurisdictions. 
(1) Allocations under paragraph (c) of this section shall be made only 
if the local participating jurisdiction:
    (i) Has a total population of 150,000 individuals or more, as 
determined on the basis of the most recent available U.S. census data 
(as adjusted by HUD); or
    (ii) Would receive an allocation of $50,000 or more.
    (2) Any allocation that would have otherwise been made to a local 
participating jurisdiction that does not meet the requirements of 
paragraph (d)(1) of this section shall revert back to the state in 
which the participating jurisdiction is located.
    (e) Consortia with members in more than one state. A consortium 
with members in more than one state will receive an allocation if the 
consortium meets the requirements described in paragraph (d) of this 
section.
    (f) Allocation of FY2003 ADDI funds. For the allocation of FY2003 
ADDI funds, HUD will consider a participating jurisdiction's need for, 
and prior commitment to, assistance to homebuyers. Puerto Rico is a 
``state'' for FY2003 ADDI funds.
    (1) Need. The need of the participating jurisdiction for assistance 
to homebuyers is measured by its ADDI formula allocation, as calculated 
under paragraphs (b) through (e) of this section.
    (2) Prior commitment. Only those participating jurisdictions that 
have demonstrated prior commitment to assistance to homebuyers will 
receive FY2003 ADDI funds. A participating jurisdiction has 
demonstrated prior commitment to homebuyers if it has previously 
committed funds to such purpose under the HOME program, the Community 
Development Block Grants (CDBG) program, mortgage revenue bonds, or 
existing funding from state and local governments.


Sec.  92.606  Reallocations.

    If any funds allocated to a participating jurisdiction under Sec.  
92.604 become available for reallocation, the funds shall be 
reallocated in the next fiscal year in accordance with Sec.  92.604.


Sec.  92.608  Consolidated plan.

    To receive an ADDI formula allocation, a participating jurisdiction 
must address the use of the ADDI funds in its consolidated plan 
submitted in accordance with 24 CFR part 91.


Sec.  92.610  Program requirements.

    The following program requirements contained in subpart E of this 
part apply to the ADDI:
    (a) Private-public partnership. The private-public partnership 
provisions contained in Sec.  92.200 apply to the ADDI.
    (b) Distribution of assistance. The distribution of assistance 
requirements contained in Sec.  92.201 apply to the ADDI.
    (c) Income determinations. The income determination requirements 
contained in Sec.  92.203 apply to the ADDI.
    (d) Pre-award costs. The requirements regarding pre-award costs 
contained in Sec.  92.212 apply to the ADDI.
    (e) Matching contribution requirement. The matching contribution 
requirements contained in Sec. Sec.  92.218 through 92.222 apply to 
FY2003 ADDI funds only.


Sec.  92.612  Project requirements.

    The following project requirements contained in subpart F of this 
part apply to the ADDI:
    (a) Maximum per-unit subsidy amount and subsidy layering. The 
maximum per-unit subsidy limits and subsidy layering requirements 
contained in Sec.  92.250 apply to the total HOME and ADDI funds in a 
project.
    (b) Property standards. Housing assisted with ADDI funds must meet 
the property standards contained in Sec.  92.251.
    (c) Qualification as affordable housing. Housing assisted with ADDI 
funds must meet the affordability requirements contained in Sec.  
92.254(a) and (c). If a project receives both HOME and ADDI funds, the 
total of HOME and ADDI funds in the project is used for calculating the 
period of affordability described in Sec.  92.254(a)(4) and applied to 
resales (Sec.  92.254(a)(5)(i)) and recaptures (Sec.  
92.254(a)(5)(ii)).
    (d) Faith-based organizations. Faith-based organizations are 
eligible to participate in the ADDI as subrecipients or contractors as 
provided in Sec.  92.257.


Sec.  92.614  Other Federal requirements.

    (a) The following Federal requirements contained in subpart H of 
this part apply to the ADDI:
    (1) Other Federal requirements and nondiscrimination. The Federal 
and nondiscrimination requirements contained in Sec.  92.350 apply to 
the ADDI.
    (2) Environmental review. The environmental review requirements 
contained in Sec.  92.352 apply to the ADDI.
    (3) Labor. The labor requirements contained in Sec.  92.354 apply 
to ADDI.
    (4) Lead-based paint. The lead-based paint prevention and abatement 
requirements contained in Sec.  92.355 apply to the ADDI.
    (5) Conflict of interest. The conflict of interest requirements 
contained in Sec.  92.356 apply to the ADDI.
    (6) Consultant activities. The requirements regarding consultant 
activities contained in Sec.  92.358 apply to the ADDI.
    (b) The following Federal requirements contained in subpart H of 
this part do not apply to the ADDI:
    (1) Affirmative marketing. The affirmative marketing requirements 
contained in Sec.  92.351(a).
    (2) Displacement, relocation, and acquisition. The displacement, 
relocation, and acquisition requirements

[[Page 16768]]

implementing the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act (42 U.S.C. 4201-4655) and the implementing 
regulations at 49 CFR part 24, contained in Sec.  92.353 do not apply 
to ADDI, except the requirements do apply to FY2003 ADDI funds.
    (3) Executive Order 12372. The requirements of Executive Order 
12372 (entitled ``Intergovernmental Review) described in Sec.  92.357.


Sec.  92.616  Program administration.

    The following program administration requirements contained in 
subpart K of this part apply to the ADDI:
    (a) HOME Investment Trust Fund. The requirements regarding the HOME 
Investment Trust Fund contained in Sec.  92.500 apply to the ADDI, with 
the exception of paragraphs (c)(2) and (d)(1)(A).
    (b) HOME Investment Partnership Agreement. The requirements 
regarding HOME Investment Partnership Agreements contained in Sec.  
92.501 apply to the ADDI.
    (c) Program disbursement and information system. The requirements 
regarding program disbursement and information systems contained in 
Sec.  92.502 apply to the ADDI.
    (d) Program income, repayments and recaptured funds. The 
requirements regarding program income, repayments, and recaptured funds 
contained in Sec.  92.503 apply to the ADDI, except the program income 
and recaptured funds must be deposited in the participating 
jurisdiction's HOME investments trust fund local account and used in 
accordance with the HOME program requirements.
    (e) Participating jurisdiction responsibilities and written 
agreements. The requirements regarding participating jurisdiction 
responsibilities and written agreements contained in Sec.  92.504 apply 
to the ADDI, with the modification that the written agreement is not 
required to cover any HOME requirement that is not applicable to the 
ADDI.
    (f) Applicability of uniform administrative requirements. The 
uniform administrative requirements contained in Sec.  982.505 apply to 
the ADDI.
    (g) Audit. The audit requirements contained in Sec.  92.506 apply 
to the ADDI.
    (h) Closeout. The closeout requirements contained in Sec.  92.507 
apply to the ADDI.
    (i) Recordkeeping. The project records must include records 
demonstrating that the family qualifies as a first-time homebuyer. The 
recordkeeping requirements contained in Sec.  92.508 apply to the ADDI, 
with the exception of the following paragraphs:
    (1) Paragraph (a)(1);
    (2) Paragraphs (a)(2)(iv), (a)(2)(v), (a)(2)(vi), (a)(2)(xi), and 
(a)(2)(xii);
    (3) Paragraphs (a)(3)(vi), (a)(3)(vii), (a)(3)(viii), (a)(3)(ix), 
and (a)(3)(xiii);
    (4) Paragraph (a)(4);
    (5) Paragraphs (a)(7)(i)(B), (a)(7)(i)(C), (a)(7)(ii)(A), and 
(a)(7)(ix) (in addition, the requirements of paragraph (a)(7)(iv) apply 
to FY2003 ADDI funds only); and
    (6) Paragraphs (c)(1) and (c)(3) (in addition, the requirements of 
paragraph (c)(5) apply to FY2003 ADDI funds only).
    (j) Performance reports. The requirements regarding performance 
reports contained in Sec.  92.509 apply to the ADDI.


Sec.  92.618  Performance reviews and sanctions.

    HUD will review the performance of participating jurisdictions in 
carrying out its responsibilities under the ADDI in accordance with the 
policies and procedures contained in subpart L of this part.

    Dated: March 10, 2004.
Alphonso Jackson,
Acting Secretary.
[FR Doc. 04-7122 Filed 3-29-04; 8:45 am]
BILLING CODE 4210-29-P