Reconsideration of Waivers Granted to and Alternative Requirements for Community Development Block Grant Disaster Recovery Grantees Under Public Laws 109-148 and 109-234, 46312-46322 [E8-18281]
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
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Reconsideration of Waivers Granted to
and Alternative Requirements for
Community Development Block Grant
Disaster Recovery Grantees Under
Public Laws 109–148 and 109–234
Office of the Secretary, HUD.
Notice.
AGENCY:
ACTION:
SUMMARY: This Notice reconsiders and
generally affirms the waivers made
under the three ‘‘common’’ Notices
governing grant funds for Community
Development Block Grant (CDBG)
disaster recovery grants for the purpose
of assisting in the recovery in the most
impacted and distressed areas related to
the consequences of Hurricanes Katrina,
Rita, and Wilma in the Gulf of Mexico
in 2005. These prior notices were
published in the Federal Register on
February 13, 2006, October 30, 2006,
and August 24, 2007. The Notice
published today addresses the purpose
and use of these funds, while
highlighting unique components of the
three notices and noting any changes
made by HUD as the result of the
required reconsideration of the waivers.
For the most part, HUD is repeating or
restating the original explanatory text so
that grantees and program
administrators may continue to have the
explanation of a changed requirement
and the requirement itself in a single
document.
DATES: Effective Date: August 8, 2008.
FOR FURTHER INFORMATION CONTACT:
Jessie Handforth Kome, Director,
Disaster Recovery and Special Issues
Division, Office of Block Grant
Assistance, Department of Housing and
Urban Development, 451 Seventh Street,
SW., Room 7286, Washington, DC
20410, telephone number 202–708–
3587. Persons with hearing or speech
impairments may access this number
via TTY by calling the Federal
Information Relay Service at 800–877–
8339. Fax inquiries may be sent to Ms.
Kome at 202–401–2044. (Except for the
800 number, these telephone numbers
are not toll-free.)
SUPPLEMENTARY INFORMATION:
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Camp Lejeune NC
Landholding Agency: Navy
Property Number: 77200830013
Status: Unutilized
Reasons: Secured Area
[FR Doc. E8–18181 Filed 8–7–08; 8:45 am]
BILLING CODE 4210–67–P
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Authority To Grant Waivers
The Department of Defense,
Emergency Supplemental
Appropriations to Address Hurricanes
in the Gulf of Mexico, and Pandemic
Influenza Act, 2006 (Pub. L. 109–148,
approved December 30, 2005)
(Appropriations Act) appropriated $11.5
billion, and Chapter 9 of Title II of the
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Emergency Supplemental
Appropriations Act for Defense, the
Global War on Terror, and Hurricane
Recovery, 2006 (Pub. L. 109–234,
approved June 15, 2006), appropriated
$5.2 billion for a combined total of
$16.7 billion in CDBG funds for
necessary expenses related to disaster
relief, long-term recovery, and
restoration of infrastructure directly
related to the consequences of the
covered disasters. These 2006 Acts
(collectively ‘‘the supplemental Acts’’)
authorize the Secretary to waive, or
specify alternative requirements for, any
provision of any statute or regulation
that the Secretary administers in
connection with the obligation by the
Secretary or by the five eligible states’
use of these funds, except for
requirements related to fair housing,
nondiscrimination, labor standards, and
the environment, upon a request by one
of the five states and a finding by the
Secretary that such a waiver would not
be inconsistent with the overall purpose
of the statute. The difference between
the waiver authorizations in the
supplemental Acts is that Public Law
109–148 directs that the Secretary
‘‘shall’’ make the waivers in response to
a state’s request and a consistency
finding, while Public Law 109–234
states that the Secretary ‘‘may’’ make
such waivers.
This Notice reconsiders and generally
affirms the waivers made under the
three ‘‘common’’ Notices governing
grant funds for CDBG disaster recovery
grants for the purpose of assisting in the
recovery in the most impacted and
distressed areas related to the
consequences of Hurricanes Katrina,
Rita, and Wilma in the Gulf of Mexico
in 2005. These prior notices were
published in the Federal Register on
February 13, 2006 (71 FR 7666), October
30, 2006 (71 FR 63337), and August 24,
2007 (72 FR 48804). The reconsideration
of the February 13, 2006, Notice is
required at this time. HUD is
reconsidering the October 30, 2006, and
August 24, 2007, Notices earlier than
required by statute because publication
of all common waivers and alternative
requirements in a single Notice will
produce a more sensible administrative
and regulatory result.
The following waivers and alternative
requirements for funds provided under
either 2006 Act are in response to
requests from all five states receiving
CDBG disaster recovery grants under
those Acts. In accordance with the
states’ earlier requests for administrative
consistency to the extent feasible (noted
in 71 FR 63337, published October 30,
2006), each waiver or alternative
requirement will apply to assistance
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
provided under either Act wherever
appropriate and possible.
After reconsideration, the Secretary
affirms that the following waivers and
alternative requirements, as described
below, are not inconsistent with the
overall purpose of Title I of the Housing
and Community Development Act of
1974, as amended, or the CranstonGonzalez National Affordable Housing
Act, as amended.
Under the requirements of the
Department of Housing and Urban
Development Reform Act of 1989 (the
HUD Reform Act), as amended 42 U.S.C.
3535(q), regulatory waivers must be
justified and published in the Federal
Register.
Further, the supplemental Acts direct
the Secretary to publish in the Federal
Register any waiver (or reconsideration
thereof) of any statute or regulation that
the Secretary administers pursuant to
Title I of the Housing and Community
Development Act of 1974, no later than
5 days before the effective date of such
waiver.
Except as described in this and other
notices applicable to these grants,
statutory and regulatory provisions
governing the CDBG program for states,
including those at 24 CFR part 570,
shall apply to the use of these funds. In
accordance with the supplemental Acts,
HUD is reconsidering every published
waiver 2 years from its date of
publication.
Allocations
The supplemental Acts provide a
combined total of $16.7 billion for the
CDBG program for:
Necessary expenses related to disaster
relief, long-term recovery, and restoration of
infrastructure in the most impacted and
distressed areas related to the consequences
of Hurricanes Katrina, Rita, or Wilma in the
Gulf of Mexico in 2005.
The $11.5 billion allocation
appropriated under Public Law 109–148
is also discussed and expanded upon in
the conference report (H.R. Rep. No.
109–359). The conference agreement
included $11.5 billion for necessary
expenses related to disaster relief, longterm recovery, restoration of
infrastructure, and mitigation in
communities in any declared disaster
area in Louisiana, Mississippi, Alabama,
Florida, and Texas related to Hurricanes
Katrina, Rita, or Wilma. The conference
agreement emphasizes the requirement
that the states with the most impacted
and distressed areas in connection with
the Gulf of Mexico hurricanes receive
priority consideration in the allocation
of funds by HUD.
Public Law 109–148 further states:
That funds provided under this heading
shall be administered through an entity or
entities designated by the Governor of each
state. And that no state shall receive more
than 54 percent of the amount provided
under this heading.
Public Law 109–234 also states:
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That funds provided under this heading
shall be administered through an entity or
entities designated by the Governor of each
state. And that no state shall receive more
than $4.2 billion of the amount provided
under this heading.
As provided for in Public Law 109–
148 and Public Law 109–234, the funds
may not be used for activities
reimbursable by or for which funds are
made available by the Federal
Emergency Management Agency
(FEMA) or the Army Corps of Engineers.
Further, none of the funds made
available under Public Law 109–234
may be used by a state or locality as a
matching requirement, share, or
contribution for any other federal
program.
Also as required by Public Law 109–
234, not less than $1.0 billion of the
$5.2 billion appropriation (which
computes to 19.3311 percent of any
state’s allocation, excluding $27.0
million in administrative set-asides)
shall be used for repair, rehabilitation,
and reconstruction (including
demolition, site clearance, and
remediation) of the affordable rental
housing stock (including public and
other HUD-assisted housing) in the
impacted areas. Therefore, HUD
requires that not less than 19.3311
percent of each state’s grant under
Public Law 109–234 be used for these
activities.
The allocations from Public Law 109–
148 are as follows:
TABLE 1—FEBRUARY 13, 2006, DISASTER RECOVERY ALLOCATION
State
Allocation
amount
($)
Disaster
Alabama .....................
Florida ........................
Louisiana ....................
Mississippi ..................
Texas .........................
Hurricane
Hurricane
Hurricane
Hurricane
Hurricane
Katrina (FEMA–1605–DR) .....................................................................................................
Katrina (FEMA–1602–DR), Hurricane Wilma (FEMA–1609–DR) ..........................................
Katrina (FEMA–1603–DR), Hurricane Rita (FEMA–1607–DR) .............................................
Katrina (FEMA–1604–DR) .....................................................................................................
Rita (FEMA–1606–DR) ..........................................................................................................
The allocations from the
supplemental appropriation, as
74,388,000
82,904,000
6,210,000,000
5,058,185,000
74,523,000
provided for in Public Law 109–234, are
as follows:
TABLE 2—OCTOBER 30, 2006, DISASTER RECOVERY SUPPLEMENTAL ALLOCATION
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State
Alabama ....................
Florida ........................
Louisiana ...................
Mississippi .................
Texas .........................
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Allocation
amount
($)
Disaster
Hurricane
Hurricane
Hurricane
Hurricane
Hurricane
17:25 Aug 07, 2008
Katrina (FEMA–1605–DR) ......................................................................
Katrina (FEMA–1602–DR), Hurricane Wilma (FEMA–1609–DR) ..........
Katrina (FEMA–1603–DR), Hurricane Rita (FEMA–1607–DR) ..............
Katrina (FEMA–1604–DR) ......................................................................
Rita (FEMA–1606–DR) ...........................................................................
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21,225,574
100,066,518
4,200,000,000
423,036,059
428,671,849
08AUN1
Minimum amount
for affordable
rental housing
($)
4,103,146
19,344,001
811,907,984
81,777,703
82,867,166
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
The amounts in Table 2 include the
minimum amount of the allocations
each state is required to use, pursuant
to Public Law 109–234, for repair,
rehabilitation, and reconstruction
(including demolition, site clearance,
and remediation) of the affordable rental
housing stock (including public and
other HUD-assisted housing) in the
impacted areas.
In the case of Louisiana, the
Department reviewed data chronicling
the massive impact of the disasters on
affordable rental housing, including
public housing, in the areas of the state
most affected by the disasters. In light
of the state’s unprecedented housing
needs resulting from the disasters, the
Secretary gave priority to affordable
rental housing through an alternative
requirement on the grant under Public
Law 109–234. Under a prior Notice,
HUD required that before the state of
Louisiana expended any funds to meet
the minimum requirement for affordable
rental housing (see table above), the
Governor of Louisiana had to
demonstrate to the Secretary’s
satisfaction that the state will provide
funds or has identified dedicated
resources sufficient to meet the key
disaster recovery needs for repair,
rehabilitation, and reconstruction of
affordable rental housing stock,
including public housing, in the most
impacted areas of the state. This notice
continues the requirement to ensure that
any fund reprogramming continues to
prioritize such housing.
Pursuant to this Notice, HUD
continues to invite each of the five
states to submit an Action Plan for
Disaster Recovery in accordance with
prior Notices.
The supplemental Acts require that
funds be used only for disaster relief,
long-term recovery, and restoration of
infrastructure in the most impacted and
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Notice
71
71
71
71
71
71
71
71
72
72
72
72
72
72
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
FR
The provisions of this Notice do not
apply to funds provided under the
18:27 Aug 07, 2008
Prevention of Fraud, Abuse, and
Duplication of Benefits
The supplemental Acts also directed the
Secretary to: Establish procedures to prevent
recipients from receiving any duplication of
benefits and report quarterly to the
Date
7666, FR–5051–N–01 ...................
34448, FR–5051–N–02 .................
34451, FR–5051–N–04 .................
34457, FR–5051–N–03 .................
43622, FR–5051–N–05 .................
51678, FR–5051–N–06 .................
62372, FR 5051–N–07 ..................
63337, FR–5089–N–01 .................
10014, FR–5089–N–03 .................
10020, FR–5089–N–04 .................
48804, FR–5089–N–05 .................
48808, FR–5051–N–08 .................
61788, FR–5051–N–09 .................
70472, FR–5183–N–01 .................
VerDate Aug<31>2005
distressed areas related to the
consequences of hurricanes in the Gulf
of Mexico in 2005. The supplemental
Acts direct that each grantee describe in
its Action Plan for Disaster Recovery
how the use of the grant funds gives
priority to infrastructure development
and the rehabilitation and
reconstruction of the affordable rental
housing stock, including public and
other HUD-assisted housing. HUD
monitors compliance with this direction
and may be compelled to disallow
expenditures if it finds that uses of
funds are not disaster-related, or that
funds allocated duplicate other benefits.
HUD encourages grantees to contact
their assigned HUD offices for guidance
in complying with these requirements
during development of their Action
Plans for Disaster Recovery and any
amendments or if they have any
questions regarding meeting these
requirements.
For the state of Louisiana, which
suffered major impacts from two of the
hurricanes, HUD estimated that more
than 85 percent of the major and severe
damage due to those storms was in the
New Orleans-Metairie-Bogalusa
Metropolitan Area (Jefferson, Orleans,
Plaquemines, St. Bernard, St. Charles,
St. John the Baptist, and St. Tammany
parishes). HUD, therefore, expects the
state to target a substantial majority of
its disaster recovery funds under Public
Law 109–234 toward the disaster
recovery needs in the New OrleansMetairie-Bogalusa Metropolitan Area,
and included an alternative requirement
to that effect.
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02/13/2006
06/14/2006
06/14/2006
06/14/2006
08/01/2006
08/30/2006
10/24/2006
10/30/2006
03/06/2007
03/06/2007
08/24/2007
08/24/2007
10/31/2007
12/11/2007
To meet this directive, HUD has taken
five courses of action. First, HUD
established by Notice specific reporting,
written procedures, monitoring, and
internal audit requirements for grantees.
Second, to the extent that its resources
allowed, HUD instituted risk analysis
and on-site monitoring of grantee
management of the grants and of the
specific uses of funds. Third, HUD has
been extremely cautious in considering
any waiver related to basic financial
management requirements. The
standard, time-tested CDBG financial
requirements will continue to apply to
future waiver requests. Fourth, HUD
collaborated with the HUD Office of
Inspector General to plan and
implement oversight of these funds.
Fifth, HUD followed the direction of the
conference report for Public Law 109–
494 and applied $6 million of funds
appropriated for the Working Capital
Fund for ‘‘immediate enhancement of
the capabilities of the Disaster Recovery
Grant Reporting system by building
additional electronic controls that are
intended to increase accountability
while further decreasing the risk of
fraud, waste, or abuse.’’
Waiver Justification
In general, waivers already granted to
the states of Alabama, Florida,
Louisiana, Mississippi, and Texas and
alternative requirements already
specified for CDBG disaster recovery
grant funds provided under the
supplemental Acts apply unless
determined to be excepted or limited
under this Notice. The notices in which
these prior waivers and alternative
requirements appear are shown in the
table below.
Applicability
Common Allocation/Application for $11.5 billion.
State of Alabama.
State of Louisiana.
State of Mississippi.
State of Texas.
State of Florida.
State of Mississippi.
Common Allocation/Application, and Applicability of Prior Waivers for $5.2 billion.
State of Louisiana.
State of Mississippi.
Common waiver of Section 414 of the Stafford Act and alternative requirements.
State of Mississippi.
State of Mississippi.
State of Louisiana for $3 billion.
regular CDBG program or other HUD or
federally funded programs. The
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Committees on Appropriations with regard to
all steps taken to prevent fraud and abuse of
funds made available under this heading,
including duplication of benefits.
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provisions provide additional flexibility
in program design and implementation
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
and implement statutory requirements
unique to these appropriations.
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Section 414 of the Stafford Act
The states requested and were granted
a waiver of Section 414 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act, as amended, for all their
disaster recovery programs. Section 414
requires special measures that are
designed to assist the efforts of the five
states in expediting the rendering of aid
and emergency services and in the
reconstruction and rehabilitation of
devastated areas, as necessary. In
addition, the Secretary provided
alternative requirements more
consistent with the purpose of the
supplemental Acts, which have assisted
and supported disaster recovery in the
areas most impacted by the effects of the
three 2005 Gulf hurricanes. Hurricanes
Katrina, Rita, and Wilma resulted in
unprecedented destruction in the Gulf
states, which will continue to require
reconstruction for many years (and
possibly decades) to come. The
Department surveyed other federal
agencies’ administration of Section 414
and found varying interpretations for
long-term, post-disaster projects
involving the acquisition, rehabilitation,
or demolition of disaster-damaged
housing. The five states have also
launched programs, such as rental
rehabilitation, that could be affected by
this statute if a clear direction to restore
affordable rental housing to the
devastated areas is not realized.
Therefore, to avoid possible risk to the
recovery effort by further delay in
providing the states with a definitive
answer, the Department issued a partial
statutory waiver and specified
alternative requirements. HUD is
continuing this statutory waiver by this
Notice because affordable housing
programs are under way in all five of the
states that rely on this waiver and
alternative requirements. For programs
or projects covered by this waiver
(‘‘covered programs or projects’’) that
are initiated within 3 years after the
applicable disaster, an affected state
must select one of the two alternative
requirements specified in 72 FR 48804
and restated in this Notice.
Alternative One
The state may provide relocation
assistance to a former residential
occupant whose former dwelling is
acquired, rehabilitated, or demolished
for a covered program or project
initiated within 3 years after the
disaster, even though the actual
displacements were caused by the
effects of the disaster. To the extent
practicable, such relocation assistance
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17:25 Aug 07, 2008
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must be offered in a manner consistent
with the Uniform Relocation Assistance
and Real Property Acquisition Policies
Act of 1970, as amended, (URA) and its
implementing regulations, except as
modified by applicable waivers and
alternative requirements.
Alternative Two
If the state determines that the first
alternative would substantially conflict
with meeting the disaster recovery
purposes of the supplemental Acts, the
state may establish a re-housing plan for
a covered program or project initiated
within 3 years after the disaster. Such
determinations must be made on a
program or project basis (not person or
household). The re-housing plan must
include, at minimum, the following:
1. A description of the class(es) of
persons eligible for assistance, including
all persons displaced from their
residences by particular enumerated, or
all, effects of the disaster, and including
all persons still receiving temporary
housing assistance from FEMA for the
covered disaster(s);
2. A description of the types and
amount of financial assistance to be
offered, if any;
3. A description of other services to be
made available, including, at minimum,
outreach efforts to eligible persons and
housing counseling providing
information about available housing
resources. Outreach efforts and housing
counseling information should be
provided in languages other than
English to persons with limited English
proficiency; and
4. Contact information and a
description of any applicable
application process, including any
deadlines.
5. If the program or project involves
rental housing, the re-housing plan must
also include the following:
(i) Placement services for former and
prospective tenants;
(ii) A public registry of available
rental units assisted with CDBG disaster
recovery and/or other funds; and
(iii) A description of application
materials, award letters, and operating
procedures requiring property owners to
make reasonable attempts to contact
their former residential tenants and offer
them a unit upon completion if they
meet the program’s eligibility
requirements.
Justification for Waiver
This section of the Notice describes
the basis for granting the section 414
waivers represented by the states in
their requests. The principal reasons are
highlighted here:
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• Hurricanes Katrina, Rita, and
Wilma caused unprecedented
destruction in the Gulf Coast region.
The magnitude of destruction resulted
in massive displacements and
decimated the region’s affordable
housing stock. Continued ambiguity on
Section 414’s applicability may cause
substantial delays in long-term recovery
along the Gulf Coast, particularly in
Louisiana, Mississippi, and Texas;
• URA assistance may duplicate
insurance proceeds and federal, state, or
local housing assistance that has already
been disbursed; and
• The opportunity to simplify the
administration of disaster recovery
projects or programs initiated years
following the disaster.
Persons in physical occupancy who
are displaced by a HUD-assisted disaster
recovery project will continue to be
eligible for URA assistance. Persons
displaced by the effects of the disaster
may continue to apply for assistance
under the states’ approved disaster
recovery programs, which are designed
to bring affordable housing to the
affected areas. This waiver does not
address programs or projects receiving
other HUD funding, or funding from
other federal sources.
A state may already be performing
some elements of a re-housing plan,
such as providing a public rental
registry or undertaking outreach and
placement services to those former
residents still receiving FEMA housing
assistance. Description in the re-housing
plan of how those existing efforts will
be available for covered programs or
projects may be used in satisfying the
requirements of this Notice. These
waivers and alternative requirements
streamline the pre-grant process and set
the guidelines for a state’s application
for allocations.
Application for Allocations Under
Public Laws 109–148 and 109–234
Overall benefit to low- and moderateincome persons. Pursuant to explicit
authority in the supplemental Acts,
HUD granted an overall benefit waiver
that allows for up to 50 percent of the
grants to assist activities under the
urgent need or under the prevention or
elimination of slums and blight national
objectives, rather than the 30 percent
allowed in the annual state CDBG
program. The primary objective of Title
I of the Housing and Community
Development Act of 1974 and of the
funding program of each grantee is
‘‘development of viable urban
communities, by providing decent
housing and a suitable living
environment and expanding economic
opportunities, principally for persons of
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low and moderate income.’’ The statute
goes on to set the standard of
performance for this primary objective
for the annual CDBG program at 70
percent of the aggregate of the funds
used for support of activities producing
benefit to low- and moderate-income
persons. Because extensive damage to
community development and housing
affected those with varying incomes,
and the hardest-hit grantees have
designed their programs to take
advantage of this waiver, HUD is
retaining the waiver of the 70 percent
overall benefit requirement and leaving
the 50 percent requirement, in order to
give grantees continued flexibility to
carry out recovery activities within the
confines of the CDBG program national
objectives. HUD may provide additional
waivers of this requirement only if it
makes a finding of compelling need.
The requirement that each activity meet
one of the three national objectives is
not waived. HUD did reconsider, but is
not altering this waiver. The states have
already budgeted the vast majority of
the funds under the terms of the initial
waiver. Changing the waiver and
alternative requirement now might be
counter-productive to the recovery
efforts across the Gulf Coast and, most
particularly, in Louisiana. The state of
Mississippi has been granted additional
overall benefit waivers and alternative
requirements as published in Notices
other than the three under
reconsideration in the current Notice.
The first of Mississippi’s other Notices
is scheduled for reconsideration in June
2008.
Expanded distribution and direct
action. The waivers and alternative
requirements allowing distribution of
funds by a state to entitlement
communities and Indian tribes, and to
allow a state to carry out activities
directly rather than distribute all funds
to units of local government, are
consistent with waivers granted for
previous similar disaster recovery cases.
HUD believes that, in recommending
the Lower Manhattan Development
Corporation (LMDC) as a model and in
increasing the administrative cap,
Congress is signaling its intent that the
states under this appropriation also be
able to carry out activities directly.
Therefore, HUD waived and continues
its waiver of certain program
requirements to support direct
implementation of activities by the
states. HUD stated in prior Notices and
restates in this Notice the necessary
complementary waivers and alternative
requirements related to subrecipients to
ensure proper management and
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disposition of funds during the grant
execution and at closeout.
Consistency with the consolidated
plan. HUD waived the requirement for
consistency with the consolidated plan
priorities because the effects of a major
disaster usually alter a grantee’s
priorities for meeting housing,
employment, and infrastructure needs.
To emphasize that uses of grant funds
must be consistent with the overall
purposes of the Housing and
Community Development Act of 1974,
HUD requires the scope of the waiver to
be consistent with the consolidated
plan; the waiver applies only until the
grantee first updates its consolidated
plan priorities following the disaster.
Because of limited data availability or
staff resources, not all grantees have
completely updated their consolidated
plans. Therefore, HUD is continuing this
waiver.
Action Plan for Disaster Recovery.
HUD waived the CDBG action plan
requirements and substituted an Action
Plan for Disaster Recovery. HUD is
continuing this waiver and restates the
Action Plan for Disaster Recovery
requirements under this Notice. This
waiver allowed for rapid
implementation of disaster recovery
grant programs and ensured
conformance with provisions of the
supplemental Acts. Where possible, the
Action Plan for Disaster Recovery,
including certifications, does not repeat
common action plan elements that the
grantee already committed to carry out
as part of its annual CDBG submission.
Although a state as the grantee may
designate an entity or entities to
administer the funds, the state is
responsible for compliance with federal
requirements. During the course of these
grants, HUD is monitoring the states’
uses of funds and their actions for
consistency with the Action Plan. A
state may submit an initial, partial
Action Plan and amend it one or more
times subsequently until the Action
Plan describes uses for the combined
total grant amount. A state may also
amend activities in its Action Plan.
The following new elements to a
state’s Action Plan for Disaster Recovery
apply only to the supplemental funds
allocated under Public Law 109–234:
These elements include a description
of how the state gives priority to
infrastructure development and
rehabilitation and how the state gives
priority to the rehabilitation and
reconstruction of the affordable rental
housing stock, including public and
other HUD-assisted housing. The state
must explain how its choices for the use
of funds will result in the state meeting
the requirement to use not less than
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19.3311 percent of its allocation under
Public Law 109–234 for repair,
rehabilitation, and reconstruction
(including demolition, site clearance,
and remediation) of the affordable rental
housing stock (including public and
other HUD-assisted housing) in the
impacted areas. The explanation should
include how the state has considered
the unique challenges that individuals
with disabilities face in finding
accessible and affordable housing.
Citizen participation. The citizen
participation waiver and alternative
requirements permit a more streamlined
public process, but one that still
provides for reasonable public notice,
appraisal, examination, and comment
on the CDBG disaster recovery grant
fund activities. The waiver removes the
requirement at both the grantee and
state grant recipient levels for public
hearings or meetings as the method for
disseminating information or collecting
citizen comments. Instead, grantees are
encouraged to employ innovative
methods to communicate with citizens
and solicit their views on proposed uses
of disaster recovery funds, and to
indicate in the Action Plan how the
grantee has addressed these views. After
reconsidering this waiver, HUD decided
to leave it in place because the need for
speedy decision-making is still
necessary in some of the states.
However, HUD is providing guidance
that, as time since the hurricanes
elapses, HUD expects grantees to
provide for increased time for public
comments and for provision of public
hearings related to amendments to the
Action Plan whenever hearings are
administratively feasible. HUD notes
that most grantees are making good use
of the Internet to provide disaster
recovery information on plan
amendments and resources for their
citizens, and HUD expects this practice
will continue.
Administration limitation. State
program administration requirements
must be modified to be consistent with
the Appropriations Act, which allows
up to 5 percent of the grant to be used
for the state’s administrative costs. The
provisions at 42 U.S.C. 5306(d) and 24
CFR 570.489(a)(1)(i) and (iii) will not
apply to the extent that they cap state
administration expenditures and require
a dollar-for-dollar match of state funds
for administrative costs exceeding
$100,000. HUD does not waive 24 CFR
570.489(a)(3) to allow the state to
exceed the overall planning,
management, and administrative cap of
20 percent.
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Use of Subrecipients
The state CDBG program rule does not
make specific provision for the
treatment of the entities called
‘‘subrecipients’’ in the CDBG
entitlement program. The waiver
allowing a state to carry out activities
directly creates a situation in which the
state may use subrecipients to carry out
activities in a manner similar to
entitlement communities. HUD and its
Office of Inspector General have long
identified the use of subrecipients as a
practice that increases the risk of abuse
of funds. HUD’s experience is that this
risk can be successfully managed by
adhering to the CDBG entitlement
requirements and related guidance.
Therefore, HUD requires that a state
taking advantage of the waiver allowing
it to carry out activities directly must
follow the alternative requirements that
are drawn from the CDBG entitlement
rule and specified in this Notice, when
using subrecipients.
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Reporting
HUD waives the annual reporting
requirement because Congress requires
quarterly reports from the grantees and
from HUD on various aspects of the uses
of funds and of the activities funded
with these grants. Many of the data
elements the grantees will report to
Congress quarterly are the same as those
that HUD uses to exercise oversight for
compliance with the requirements of
this Notice and for prevention of fraud,
abuse of funds, and duplication of
benefits. To collect these data elements
and to meet its reporting requirements,
HUD requires each grantee to report to
HUD quarterly using the online Disaster
Recovery Grant Reporting system. HUD
uses grantee reports to monitor for
anomalies or performance problems that
suggest fraud, abuse of funds, and
duplication of benefits; to reconcile
budgets, obligations, fund draws, and
expenditures; to calculate applicable
administrative and public service
limitations and the overall percent of
benefit to low- and moderate-income
persons; and to establish a basis for risk
analysis in determining a monitoring
plan.
Originally, HUD’s guidance was that
after HUD reviews each report and
accepts a report, the grantee must post
the report on an Internet site with
public access for its citizens. On
reconsideration, HUD is requiring
grantees to post each report as it is
submitted. After HUD reviews the
report, the grantee may also post the
reviewed version, if HUD makes any
changes. If a grantee chooses, it may use
its report, together with a statement
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regarding any sole source procurements,
as its required quarterly submission to
the Committees on Appropriations.
Each quarter, HUD will submit to the
Committees a summary description of
its report reviews, of other HUD
monitoring and technical assistance
activities undertaken during the quarter,
and of any significant conclusions
related to fraud, abuse of funds, or
duplication of benefits.
Certifications
HUD waived the standard
certifications and substituted alternative
certifications. The alternative
certifications are tailored to CDBG
disaster recovery grants and remove
certifications and references that are
redundant or appropriate to the annual
CDBG formula program.
Applicable Rules, Statutes, Waivers,
and Alternative Requirements
The following discussion is
comprised of two parts: a common
section that applies to Federal Register
notices 71 FR 7666, 71 FR 63337, and
72 FR 48804, and a unique section that
highlights components of these three
notices that are different.
Common Section
1. General note. Prerequisites to a
grantee’s receipt of CDBG disaster
recovery assistance include adoption of
a citizen participation plan; publication
of its proposed Action Plan for Disaster
Recovery; public notice and comment;
and submission to HUD of an Action
Plan for Disaster Recovery, including
certifications. Except as described in
this Notice, the statutory, regulatory,
and notice provisions that shall apply to
the use of these funds are:
a. The state-specific Notices governing
the funds appropriated under Public
Law 109–148 and Public Law 109–234
(the supplemental Acts) and already
published in the Federal Register;
b. Those governing the CDBG program
for states, including those at 42 U.S.C.
5301 et seq. and 24 CFR part 570.
2. Overall benefit waiver and
alternative requirement. The
requirements at 42 U.S.C. 5301(c), 42
U.S.C. 5304(b)(3)(A), and 24 CFR
570.484 that at least 70 percent of funds
are for activities that benefit low- and
moderate-income persons are waived to
stipulate that at least 50 percent of
disaster recovery grant funds from each
grant must assist activities that
principally benefit low- and moderateincome persons.
3. Section 414 of the Stafford Act
waiver and alternative requirements.
a. Section 414 of the Stafford Act, 42
U.S.C. 5181 (including its implementing
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46317
regulation at 49 CFR 24.403(d)), is
waived to the extent that it would apply
to CDBG disaster recovery-funded
programs or projects initiated at least
one year after the incident-date of
Hurricane Katrina, Rita, or Wilma (as
applicable) by the states of Alabama,
Florida, Louisiana, Mississippi, and
Texas under an approved Action Plan
for Disaster Recovery for its grants
under Public Law 109–148 or Public
Law 109–234; provided that such
program or project was not planned,
approved, or otherwise under way prior
to the disaster.
b. For all programs or projects covered
by this waiver (‘‘covered programs or
projects’’) that are initiated at least one
year after but within no more than 3
years after the applicable disaster, the
states of Alabama, Florida, Louisiana,
Mississippi, and Texas must comply
with one of the following two
alternative requirements (for programs
or projects initiated after the 3-year
period, the alternative requirements
would not apply; only the waiver would
be applicable):
1. Relocation Assistance. The state
may provide relocation assistance to a
former residential occupant whose
former dwelling is acquired,
rehabilitated, or demolished for a
covered program or project initiated
within 3 years after the disaster, even
though the actual displacements were
caused by the effects of the disaster. To
the extent practicable, such relocation
assistance must be offered in a manner
consistent with the Uniform Relocation
Assistance and Real Property
Acquisition Policies Act of 1970, as
amended, and its implementing
regulations, except as modified by prior
waivers and alternative requirements
granted to the states.
2. Re-housing Plan. If the state
determines that the first alternative
would substantially conflict with
meeting the disaster recovery purposes
of the supplemental Acts, the grantee
may establish a re-housing plan for a
covered program or project initiated at
least one year after, but within no more
than 3 years after, the disaster. Such a
determination must be made on a
program or project basis (not person or
household). The re-housing plan must
include, at minimum, the following:
i. A description of the class(es) of
persons eligible for assistance, including
all residents displaced from their
residences by either certain enumerated
or all effects of the covered disaster, and
including all disaster-displaced
residents still receiving temporary
housing assistance from FEMA for the
covered disasters;
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ii. A description of the types and
amount of financial assistance to be
provided, if any;
iii. A description of other services to
be made available, including, at a
minimum, outreach efforts to eligible
persons and housing counseling that
provide information about available
housing resources;
iv. Contact information for additional
program information;
v. A description of any applicable
application process, including any
deadlines; and
vi. If the program or project covered
by this waiver involves rental housing,
the grantee shall establish procedures
for the following:
A. Application materials, award
letters, and operating procedures that
require property owners to make
reasonable attempts to contact their
former tenants and to offer a unit, upon
completion, to those tenants meeting the
program’s eligibility requirements;
B. Placement services for former and
prospective tenants; and
C. A public registry of available rental
units assisted with CDBG disaster
recovery and/or other funds.
c. Eligible Project Costs. The cost of
relocation assistance and the
reoccupancy plan are eligible project
costs in the same manner and to the
same extent as other project costs
authorized under the supplemental
Acts. For covered programs or projects
involving affordable rental housing, the
relocation and planning costs required
by this Notice may be paid from funds
reserved for the affordable rental
housing stock in the impacted areas
under Public Law 109–234.
4. Direct grant administration by
states and means of carrying out eligible
activities. Requirements at 42 U.S.C.
5306 are waived to the extent necessary
to allow the state to use its disaster
recovery grant allocation directly to
carry out state-administered activities
eligible under this Notice. Activities
eligible under this Notice may be
undertaken, subject to state law, by the
recipient through its employees or
through procurement contracts, through
loans or grants under agreements with
subrecipients, or by one or more entities
that are designated by the chief
executive officer of the state. Activities
made eligible under section 105(a)(15)
of the Housing and Community
Development Act of 1974, as amended,
may be undertaken only by entities
specified in that section, regardless of
whether the assistance is provided to
such an entity from the state or from a
unit of general local government.
5. Consolidated Plan waiver.
Requirements at 42 U.S.C. 12706 and 24
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CFR 91.325(a)(6), that housing activities
undertaken with CDBG funds be
consistent with the strategic plan, are
waived. Further, the requirement at 42
U.S.C. 5304(e), to the extent that it
would require HUD to annually review
grantee performance under the
consistency criteria, is also waived.
These waivers apply only until the time
that the grantee first updates its
consolidated plan priorities following
the hurricane.
6. Citizen participation waiver and
alternative requirement. Provisions of
42 U.S.C. 5304(a)(2) and (3), 42 U.S.C.
12707, 24 CFR 570.486, and 24 CFR
91.115(b), with respect to citizen
participation requirements, are waived
and replaced by the requirements
below. The streamlined requirements do
not mandate public hearings at either
the state or local government level, but
do require providing a reasonable
opportunity for citizen comment and
ongoing citizen access to information
about the use of grant funds. The
streamlined citizen participation
requirements for this grant are:
a. Before the grantee adopts the action
plan for this grant or any substantial
amendment to this grant, the grantee
will publish the proposed plan or
amendment (including the information
required in this Notice for an Action
Plan for Disaster Recovery). The manner
of publication (including prominent
posting on the state, local, or other
relevant Web site) must afford citizens,
affected local governments, and other
interested parties a reasonable
opportunity to examine the plan or
amendment’s contents. Subsequent to
publication, the grantee must provide a
reasonable time period and method(s)
(including electronic submission) for
receiving comments on the plan or on
any substantial amendment to it. The
grantee’s plans to minimize
displacement of persons or entities and
to assist any persons or entities
displaced must be published with the
action plan. HUD expects the grantee to
hold a public hearing on a proposed
plan amendment unless doing so would
hinder the provision of expedient
disaster recovery.
b. In the action plan, each grantee will
specify its criteria for determining what
changes in the grantee’s activities
constitute a substantial amendment to
the plan. At a minimum, adding or
deleting an activity or changing the
planned beneficiaries of an activity will
constitute a substantial change. The
grantee may modify or substantially
amend the action plan if it follows the
same procedures required in this Notice
for the preparation and submission of an
Action Plan for Disaster Recovery. The
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grantee must notify HUD, but is not
required to notify the public, when it
makes any plan amendment that is not
substantial.
c. The grantee must consider all
comments received on the action plan
or any substantial amendment and
submit to HUD a summary of those
comments and the grantee’s response
with the action plan or substantial
amendment.
d. The grantee must make the action
plan, any substantial amendments, and
all performance reports available to the
public. HUD recommends posting them
on the Internet. In addition, the grantee
must make these documents available in
a form accessible to persons with
disabilities and non-English-speaking
persons. During the term of this grant,
the grantee will provide citizens,
affected local governments, and other
interested parties with reasonable and
timely access to information and records
relating to the action plan and to the
grantee’s use of this grant.
e. The grantee will provide a timely
written response to every citizen
complaint. Such response will be
provided within 15 working days of the
receipt of the complaint, if practicable.
7. Modify requirement for
consultation with local governments.
Currently, the statute and regulations
require consultation with affected units
of local government in the nonentitlement area of the state regarding
the state’s proposed method of
distribution. HUD is waiving 42 U.S.C.
5306(d)(2)(C)(iv), 24 CFR 91.325(b), and
24 CFR 91.110, with the alternative
requirement that the state consult with
all disaster-affected units of general
local government, including any CDBG
entitlement communities, in
determining the use of funds.
8. Action Plan waiver and alternative
requirement. The requirements at 42
U.S.C. 12705(a)(2), 42 U.S.C. 5304(a)(1),
42 U.S.C. 5304(m), 42 U.S.C.
5306(d)(2)(C)(iii), 24 CFR 1003.604, and
24 CFR 91.320 are waived for these
disaster recovery grants. Each state must
submit to HUD an Action Plan for
Disaster Recovery that describes:
a. The effects of the covered disaster,
especially in the most impacted areas
and populations, and the greatest
recovery needs resulting from the
covered disaster that have not been
addressed by insurance proceeds, other
federal assistance, or any other funding
source;
b. The grantee’s overall plan for
disaster recovery, including:
1. How the state will promote sound
short- and long-term recovery planning
at the state and local levels, especially
land use decisions that reflect
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responsible flood plain management,
removal of regulatory barriers to
reconstruction, and prior coordination
with planning requirements of other
state and federal programs and entities;
2. How the state will encourage
construction methods that emphasize
high quality, durability, energy
efficiency, and mold resistance,
including how the state will promote
enactment and enforcement of modern
building codes and mitigation of flood
risk, where appropriate;
3. How the state will provide or
encourage provision of adequate, floodresistant housing for all income groups
that lived in the disaster-impacted areas
prior to the incident date(s) of the
applicable disaster(s), including a
description of the activities it plans to
undertake to address emergency shelter
and transitional housing needs of
homeless individuals and families
(including subpopulations), to prevent
low-income individuals and families
with children (especially those with
incomes below 30 percent of median)
from becoming homeless, to help
homeless persons make the transition to
permanent housing and independent
living, and to address the special needs
of persons who are not homelessidentified, in accordance with 24 CFR
91.315(d);
c. Monitoring standards and
procedures that are sufficient to ensure
that program requirements, including
non-duplication of benefits, are met and
that provide for continual quality
assurance, investigation, and internal
audit functions, with responsible staff
reporting independently to the Governor
of the state or, at a minimum, to the
chief officer of the governing body of
any designated administering entity;
d. A description of the steps the state
will take to avoid or mitigate
occurrences of fraud, abuse, and
mismanagement, especially with respect
to accounting, procurement, and
accountability, with a description of
how the state will provide for increasing
the capacity for implementation and
compliance of local governments,
subrecipients, subgrantees, contractors,
and any other entity responsible for
administering activities under this
grant; and
e. The state’s method of distribution.
The method of distribution shall
include descriptions of the method of
allocating funds to units of local
government and of specific projects the
state will carry out directly, as
applicable. The descriptions will
include:
1. When funds are to be allocated to
units of local government; and all
criteria used to select applications from
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local governments for funding,
including the relative importance of
each criterion, and including a
description of how the disaster recovery
grant resources will be allocated among
all funding categories, plus the
threshold factors and grant size limits
that are to be applied; and
2. In cases where the state will carry
out activities directly, the projected uses
for the CDBG disaster recovery funds
broken down by responsible entity,
activity, and geographic area;
3. How the method of distribution or
use of funds described in accordance
with the above subparagraphs will
result in eligible uses of grant funds
related to long-term recovery from
specific effects of the disaster(s) or
restoration of infrastructure; and
4. Sufficient information so that
citizens, units of general local
government, and other eligible
subgrantees or subrecipients will be able
to understand and comment on the
action plan and, if applicable, be able to
prepare responsive applications to the
state.
f. Required certifications (see the
applicable Certifications section of this
Notice); and
g. A completed and executed federal
form SF–424.
9. Allow reimbursement for preagreement costs. The provisions of 24
CFR 570.489(b) are applied to permit a
grantee to reimburse itself for otherwise
allowable costs incurred on or after the
incident date of the covered disaster.
10. Clarifying note on the process for
environmental release of funds when a
state carries out activities directly.
Usually, a state distributes CDBG funds
to units of local government and takes
on HUD’s role in receiving
environmental certifications from the
grant recipients and approving releases
of funds. For this grant, HUD will allow
a state grantee to also carry out activities
directly instead of distributing all funds
to other governments. According to the
environmental regulations at 24 CFR
58.4, when a state carries out activities
directly, the state must submit the
certification and request for release of
funds to HUD for approval.
11. Duplication of benefits. In general,
42 U.S.C. 5155 (section 312 of the
Robert T. Stafford Disaster Assistance
and Emergency Relief Act, as amended)
prohibits any person, business concern,
or other entity from receiving financial
assistance with respect to any part of a
loss resulting from a major disaster as to
which such person/business/entity has
received financial assistance under any
other program or from insurance or any
other source. The appropriations acts
stipulate that funds may not be used for
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activities reimbursable by, or for which
funds have been made available by, the
Federal Emergency Management Agency
or by the Army Corps of Engineers.
12. Waiver and alternative
requirement for distribution to CDBG
metropolitan cities and urban counties.
a. Section 5302(a)(7) of title 42, U.S.C.
(definition of ‘‘non-entitlement area’’),
and provisions of 24 CFR part 570 that
would prohibit a state from distributing
CDBG funds to units of general local
government in entitlement communities
and to Indian tribes, are waived,
including 24 CFR 570.480(a), to the
extent that such provisions limit the
distribution of funds to units of general
local government located in entitlement
areas and to state or federally
recognized Indian tribes. The state is
required instead to distribute funds to
the most adversely affected and
impacted areas related to the
consequences of the covered disaster(s)
without regard to a local government or
Indian tribe status under any other
CDBG program.
b. Additionally, because a state
grantee under this appropriation may
carry out activities directly, HUD is
applying the regulations at 24 CFR
570.480(c) with respect to the basis
under which HUD determines whether
the state has failed to carry out its
certifications; the basis shall be that the
state has failed to carry out its
certifications in compliance with
applicable program requirements. Also,
HUD is waiving 24 CFR 570.494,
regarding timely distribution of funds.
However, HUD expects each state
grantee to expeditiously obligate and
expend all funds, including any
recaptured funds or program income,
and to carry out activities in a timely
manner.
13. Note that use of grant funds must
relate to the covered disaster(s). The
supplemental Acts impose fundability
criteria in addition to the annual CDBG
requirement that each activity must be
eligible under 42 U.S.C. 5305(a) or this
Notice and meet a CDBG national
objective under the penultimate
paragraph of 42 U.S.C. 5304(b)(3).
Public Laws 109–148 and 109–234
require that each activity assisted must
be related to disaster relief, long-term
recovery, and restoration of
infrastructure in the most impacted and
distressed areas related to the
consequences of Hurricanes Katrina,
Rita, and Wilma in communities
included in Presidential disaster
declarations.
14. Note on the change to the
administration limitation. Up to 5
percent of the grant amount may be
used for the state’s administrative costs.
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The provisions of 42 U.S.C. 5306(d) and
24 CFR 570.489(a)(1)(i) and (iii) will not
apply to the extent that they cap state
administration expenditures and require
a dollar-for-dollar match of state funds
for administrative costs exceeding
$100,000. HUD does not waive 24 CFR
570.489(a)(3) to allow a state to exceed
the overall planning, management, and
administrative cap of 20 percent.
Reporting
15. Waiver of performance report and
alternative requirement. The
requirements for submission of a
Performance Evaluation Report (PER)
pursuant to 42 U.S.C. 12708 and 24 CFR
91.520 are waived. The alternative
requirement is that:
a. Each grantee must submit its Action
Plan for Disaster Recovery, including
performance measures, into HUD’s Webbased Disaster Recovery Grant Reporting
(DRGR) system. (The signed
certifications and the form SF–424 must
be submitted in hard copy.) As
additional detail about uses of funds
becomes available to the grantee, the
grantee must enter this detail into
DRGR, in sufficient detail to serve as the
basis for acceptable performance
reports.
b. Each grantee must submit a
quarterly performance report, as HUD
prescribes, no later than 30 days
following each calendar quarter,
beginning after the first full calendar
quarter, after grant award and
continuing until all funds have been
expended and all expenditures reported.
Each quarterly report will include
information about the uses of funds
during the applicable quarter, including
(but not limited to) the project name,
activity, location, and national
objective, funds budgeted, obligated,
drawn down, and expended; the
funding source and total amount of any
non-CDBG disaster funds; beginning
and ending dates of activities; and
performance measures such as numbers
of low- and moderate-income persons or
households benefiting. Quarterly reports
to HUD must be submitted using HUD’s
Web-based DRGR system.
16. Use of subrecipients. The
following alternative requirement
applies for any activity that a state
carries out directly by funding a
subrecipient:
a. 24 CFR 570.503, except that
specific references to 24 CFR parts 84
and 85 need not be included in
subrecipient agreements.
b. 570.502(b), except to the extent that
it mandates compliance with Office of
Management and Budget (OMB)
Circular A–110 (implemented at 24 CFR
part 84, ‘‘Uniform Administrative
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Requirements for Grants and
Agreements with Institutions of Higher
Education, Hospitals and Other NonProfit Organizations’’). HUD
recommends application of 24 CFR part
84, but does not require it.
17. Recordkeeping. Recognizing that
the state may carry out activities
directly, 24 CFR 570.490(b) is waived in
such a case and the following
alternative provision shall then apply:
state records. The state shall establish
and maintain such records as may be
necessary to facilitate review and audit
by HUD of the state’s administration of
CDBG disaster recovery funds under 24
CFR 570.493. Consistent with applicable
statutes, regulations, waivers and
alternative requirements, and other
federal requirements, the content of
records maintained by the state shall be
sufficient to: enable HUD to make the
applicable determinations described at
24 CFR 570.493; make compliance
determinations for activities carried out
directly by the state; and show how
activities funded are consistent with the
descriptions of activities proposed for
funding in the action plan. For fair
housing and equal opportunity purposes
and, as applicable, such records shall
include data on the racial, ethnic, and
gender characteristics of persons who
are applicants for, participants in, or
beneficiaries of the program.
18. Change of use of real property.
This waiver conforms the change of use
of real property rule to the waiver
allowing a state to carry out activities
directly. For purposes of this program,
in 24 CFR 570.489(j), (j)(1), and the last
sentence of (j)(2), ‘‘unit of general local
government’’ shall be read as ‘‘unit of
general local government or state.’’
19. Responsibility for state review and
handling of noncompliance. This
change conforms the rule with the
waiver allowing the state to carry out
activities directly. 24 CFR 570.492 is
waived and the following alternative
requirement applies: The state shall
make reviews and audits, including onsite reviews of any subrecipients,
designated public agencies, and units of
general local government as may be
necessary or appropriate to meet the
requirements of section 104(e)(2) of the
Housing and Community Development
Act of 1974, as amended, and modified
by this Notice. In the case of
noncompliance with these
requirements, the state shall take such
actions as may be appropriate to prevent
a continuance of the deficiency, to
mitigate any adverse effects or
consequences, and to prevent a
recurrence. The state shall establish
remedies for noncompliance by any
designated public agencies or units of
PO 00000
Frm 00086
Fmt 4703
Sfmt 4703
general local governments and for its
subrecipients.
20. Information collection approval
note. HUD has approval for information
collection requirements in accordance
with the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3520) under OMB
control number 2506–0165. In
accordance with the Paperwork
Reduction Act, HUD may not conduct or
sponsor, nor is a person required to
respond to, a collection of information,
unless the collection displays a valid
control number.
Certifications
21. Certifications for state
governments, waiver, and alternative
requirement. Section 91.325 of title 24
of the Code of Federal Regulations is
waived. Each state must make the
following certifications prior to
receiving a CDBG disaster recovery
grant:
a. The state certifies that it will
affirmatively further fair housing, which
means that it will conduct an analysis
to identify impediments to fair housing
choice within the state, take appropriate
actions to overcome the effects of any
impediments identified through that
analysis, and maintain records reflecting
the analysis and actions in this regard.
(See 24 CFR 570.487(b)(2).)
b. The state certifies that it has in
effect and is following a residential antidisplacement and relocation assistance
plan in connection with any activity
assisted with funding under the CDBG
program.
c. The state certifies its compliance
with restrictions on lobbying required
by 24 CFR part 87, together with
disclosure forms, if required by that
part.
d. The state certifies that the Action
Plan for Disaster Recovery is authorized
under state law and that the state, and
any entity or entities designated by the
state, possesses the legal authority to
carry out the program for which it is
seeking funding, in accordance with
applicable HUD regulations and this
Notice.
e. The state certifies that it will
comply with the acquisition and
relocation requirements of the URA, as
amended, and implementing regulations
at 49 CFR part 24, except where waivers
or alternative requirements are provided
for this grant.
f. The state certifies that it will
comply with section 3 of the Housing
and Urban Development Act of 1968 (12
U.S.C. 1701u), and implementing
regulations at 24 CFR part 135.
g. The state certifies that it is
following a detailed citizen
participation plan that satisfies the
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requirements of 24 CFR 91.115 (except
as provided for in notices providing
waivers and alternative requirements for
this grant), and that each unit of general
local government that is receiving
assistance from the state is following a
detailed citizen participation plan that
satisfies the requirements of 24 CFR
570.486 (except as provided for in
notices providing waivers and
alternative requirements for this grant).
h. The state certifies that it has
consulted with affected units of local
government in counties designated in
covered major disaster declarations in
the non-entitlement, entitlement, and
tribal areas of the state in determining
the method of distribution of funding;
i. The state certifies that it is
complying with each of the following
criteria:
1. Funds will be used solely for
necessary expenses related to disaster
relief, long-term recovery, and
restoration of infrastructure in the most
impacted and distressed areas related to
the consequences of the Gulf Coast
hurricanes of 2005 in communities
included in Presidential disaster
declarations.
2. With respect to activities expected
to be assisted with CDBG disaster
recovery funds, the action plan has been
developed so as to give the maximum
feasible priority to activities that will
benefit low- and moderate-income
families.
3. The aggregate use of CDBG disaster
recovery funds shall principally benefit
low- and moderate-income families in a
manner that ensures that at least 50
percent of the amount is expended for
activities that benefit such persons
during the designated period.
4. The state will not attempt to
recover any capital costs of public
improvements assisted with CDBG
disaster recovery grant funds, by
assessing any amount against properties
owned and occupied by persons of lowand moderate-income, including any fee
charged or assessment made as a
condition of obtaining access to such
public improvements, unless: (A)
disaster recovery grant funds are used to
pay the proportion of such fee or
assessment that relates to the capital
costs of such public improvements that
are financed from revenue sources other
than under this title; or (B) for purposes
of assessing any amount against
properties owned and occupied by
persons of moderate income, the grantee
certifies to the Secretary that it lacks
sufficient CDBG funds (in any form) to
comply with the requirements of clause
(A).
j. The state certifies that the grant will
be conducted and administered in
VerDate Aug<31>2005
17:25 Aug 07, 2008
Jkt 214001
conformity with title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d)
and the Fair Housing Act (42 U.S.C.
3601–3619) and implementing
regulations.
k. The state certifies that it has and
that it will require units of general local
government that receive grant funds to
certify that they have adopted and are
enforcing:
1. A policy prohibiting the use of
excessive force by law enforcement
agencies within its jurisdiction against
any individuals engaged in non-violent
civil rights demonstrations; and
2. A policy of enforcing applicable
state and local laws against physically
barring entrance to or exit from a facility
or location that is the subject of such
non-violent civil rights demonstrations
within its jurisdiction.
l. The state certifies that each state
grant recipient or administering entity
has the capacity to carry out disaster
recovery activities in a timely manner,
or that the state has a plan to increase
the capacity of any state grant recipient
or administering entity that lacks such
capacity.
m. The state certifies that it will not
use CDBG disaster recovery funds for
any activity in an area delineated as a
special flood hazard area in FEMA’s
most current flood advisory maps,
unless it also ensures that the action is
designed or modified to minimize harm
to or within the floodplain in
accordance with Executive Order 11988
and 24 CFR part 55.
n. The state certifies that it will
comply with applicable laws.
22. Duration of funding. Availability
of funds provisions in 31 U.S.C. 1551–
1557, added by section 1405 of the
National Defense Authorization Act for
Fiscal Year 1991 (Public Law 101–510),
limit the availability of certain
appropriations for expenditure. This
limitation may not be waived. However,
the appropriations acts for these grants
direct that these funds be available until
expended unless, in accordance with 31
U.S.C. 1555, the Department determines
that the purposes for which the
appropriation has been made have been
carried out and that no disbursement
has been made against the appropriation
for 2 consecutive fiscal years. In such a
case, the Department shall close out the
grant prior to expenditure of all funds.
Provisions Unique to Grants Under
Public Law 109–234
23. Action Plan additional elements.
The disaster recovery grantees receiving
funding under Public Law 109–234
must provide the following elements as
part of the overall plan for disaster
recovery:
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46321
a. An explanation of how the state
will give priority to the rehabilitation
and reconstruction of the affordable
rental housing stock, including public
and other HUD-assisted housing, a
description of the activities the state
plans to undertake with grant funds
under this priority, and a description of
the unique challenges that individuals
with disabilities face in finding
accessible and affordable housing;
b. An explanation of how the state
will give priority to infrastructure
development and rehabilitation, and a
description of the infrastructure
activities it plans to undertake with
grant funds; and
c. An explanation of how the method
of distribution or use of funds described
in accordance with the applicable
notices will result in the state meeting
the requirement that at least 19.3311
percent of its allocation under this
notice shall be used for repair,
rehabilitation, and reconstruction
(including demolition, site clearance,
and remediation) of the affordable rental
housing stock (including public and
other HUD-assisted housing) in the
impacted areas.
24. Alternative requirements
regarding targeting in Louisiana.
a. The State of Louisiana will target 70
percent of its disaster recovery funds
under Public Law 109–234 toward the
disaster recovery needs in the New
Orleans-Metairie-Bogalusa Metropolitan
Area; and
b. Before Louisiana expends any
funds to meet the minimum
requirement for affordable rental
housing under this notice, the Governor
of Louisiana shall demonstrate to the
Secretary’s satisfaction that the state
will provide funds or has identified
dedicated resources sufficient to meet
the key disaster recovery needs for
repair, rehabilitation, and
reconstruction of affordable rental
housing stock, including public housing
disaster recovery in the most impacted
areas of the state.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers for the disaster
recovery grants under this Notice are as
follows: 14.219; 14.228.
Finding of No Significant Impact
A Finding of No Significant Impact
(FONSI) 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 FONSI is available for
public inspection between 8 a.m. and 5
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Federal Register / Vol. 73, No. 154 / Friday, August 8, 2008 / Notices
p.m. weekdays in the Office of the Rules
Docket Clerk, Office of General Counsel,
Department of Housing and Urban
Development, 451 Seventh Street, SW.,
Room 10276, Washington, DC 20410–
0500. Due to security measures at the
HUD Headquarters building, please
schedule an appointment to review the
finding by calling the Regulations
Division at 202–402–3055 (this is not a
toll-free number).
Dated: July 28, 2008.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E8–18281 Filed 8–7–08; 8:45 am]
Office of the Secretary,
Department of the Interior.
AGENCY:
Notice of meeting.
SUMMARY: The Department of the
Interior, Office of the Secretary is
announcing a public meeting of the
Exxon Valdez Oil Spill Public Advisory
Committee.
September 3, 2008, at 9 a.m.
Exxon Valdez Oil Spill
Trustee Council Office, 441 West 5th
Avenue, Suite 500, Anchorage, Alaska.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Douglas Mutter, Department of the
Interior, Office of Environmental Policy
and Compliance, 1689 ‘‘C’’ Street, Suite
119, Anchorage, Alaska, 99501, (907)
271–5011.
The
Public Advisory Committee was created
by Paragraph V.A.4 of the Memorandum
of Agreement and Consent Decree
entered into by the United States of
America and the State of Alaska on
August 27, 1991, and approved by the
United States District Court for the
District of Alaska in settlement of
United States of America v. State of
Alaska, Civil Action No. A91–081 CV.
The meeting agenda will include review
of the draft fiscal year 2009 program
development and implementation
budget, and invitation; 2008 update to
the Injured Resources and Services List;
Integrated Herring Restoration Program;
pwalker on PROD1PC71 with NOTICES
17:25 Aug 07, 2008
Jkt 214001
Fish and Wildlife Service
Fish and Wildlife Service,
Interior.
ACTION: Notice; request for comments.
Exxon Valdez Oil Spill Trustee Council;
Notice of Meeting
VerDate Aug<31>2005
DEPARTMENT OF THE INTERIOR
AGENCY:
Office of the Secretary
SUPPLEMENTARY INFORMATION:
BILLING CODE 4310–RG–P
Information Collection Sent to the
Office of Management and Budget
(OMB) for Approval; Alaska Guide
Service Evaluation
DEPARTMENT OF THE INTERIOR
DATES:
Willie R. Taylor,
Director, Office of Environmental Policy and
Compliance.
[FR Doc. E8–18341 Filed 8–7–08; 8:45 am]
[FWS-R7-R-2008-NO182] [70138-1263-00004A]
BILLING CODE 4210–67–P
ACTION:
fiscal year 2008 projects requesting
extensions; and personnel changes.
SUMMARY: We (Fish and Wildlife
Service) have sent an Information
Collection Request (ICR) to OMB for
review and approval. The ICR, which is
summarized below, describes the nature
of the collection and the estimated
burden and cost. We may not conduct
or sponsor and a person is not required
to respond to a collection of information
unless it displays a currently valid OMB
control number.
DATES: You must submit comments on
or before September 8, 2008.
ADDRESSES: Send your comments and
suggestions on this ICR to the Desk
Officer for the Department of the
Interior at OMB-OIRA at (202) 395-6566
(fax) or OIRA_DOCKET@OMB.eop.gov
(e-mail). Please provide a copy of your
comments to Hope Grey, Information
Collection Clearance Officer, Fish and
Wildlife Service, MS 222-ARLSQ, 4401
North Fairfax Drive, Arlington, VA
22203 (mail); (703) 358-2269 (fax); or
hope_grey@fws.gov (e-mail).
FOR FURTHER INFORMATION CONTACT: To
request additional information about
this ICR, contact Hope Grey by mail, fax,
or e-mail (see ADDRESSES) or by
telephone at (703) 358–2482.
SUPPLEMENTARY INFORMATION:
OMB Control Number: None. This is
a new collection.
Title: Alaska Guide Service
Evaluation.
Service Form Number(s): 3-2349.
Type of Request: New collection.
Affected Public: Clients of permitted
commercial guide service providers.
Respondent’s Obligation: Voluntary.
Frequency of Collection: One time
following use of commercial guide
services.
Estimated Annual Number of
Respondents: 396.
PO 00000
Frm 00088
Fmt 4703
Sfmt 4703
Estimated Total Annual Responses:
396.
Estimated Time Per Response: 15
minutes.
Estimated Total Annual Burden
Hours: 99.
Abstract: We are proposing to collect
information to help us evaluate
commercial guide services on our
national wildlife refuges in the State of
Alaska (State). The National Wildlife
Refuge Administration Act of 1966, as
amended (16 U.S.C. 668dd-ee),
authorizes us to permit uses, including
commercial visitor services, on national
wildlife refuges when we find the
activity to be compatible with the
purposes for which the refuge was
established. With the objective of
making available a variety of quality
visitor services for wildlife-dependent
recreation on National Wildlife Refuge
System lands, we issue permits for
commercial guide services, including
big game hunting, sport fishing, wildlife
viewing, river trips, and other guided
activities. We plan to use FWS Form 32349 (Alaska Guide Service Evaluation)
as a method to:
(1) Monitor the quality of services
provided by commercial guides.
(2) Gauge client satisfaction with the
services.
(3) Assess the impacts of the activity
on refuge resources.
The client is the best source of
information on the quality of
commercial guiding services. We plan to
collect:
(1) Client name.
(2) Guide name(s).
(3) Type of guided activity.
(4) Dates and location of guided
activity.
(5) Information on the services
received such as the client’s
expectations, safety, environmental
impacts, and client’s overall
satisfaction.
We will encourage respondents to
provide any additional comments that
they wish regarding the guide service or
refuge experience, and ask whether or
not they wish to be contacted for
additional information.
The above information, in
combination with State-required guide
activity reports and contacts with guides
and clients in the field, will provide a
comprehensive method for monitoring
permitted commercial guide activities.
A regular program of client evaluation
will help refuge managers detect
potential problems with guide services
so that we can take corrective actions
promptly. In addition, we will use this
information during the competitive
selection process for big game and sport
fishing guides to evaluate an applicant’s
E:\FR\FM\08AUN1.SGM
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Agencies
[Federal Register Volume 73, Number 154 (Friday, August 8, 2008)]
[Notices]
[Pages 46312-46322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18281]
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-5224-N-01]
Reconsideration of Waivers Granted to and Alternative
Requirements for Community Development Block Grant Disaster Recovery
Grantees Under Public Laws 109-148 and 109-234
AGENCY: Office of the Secretary, HUD.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: This Notice reconsiders and generally affirms the waivers made
under the three ``common'' Notices governing grant funds for Community
Development Block Grant (CDBG) disaster recovery grants for the purpose
of assisting in the recovery in the most impacted and distressed areas
related to the consequences of Hurricanes Katrina, Rita, and Wilma in
the Gulf of Mexico in 2005. These prior notices were published in the
Federal Register on February 13, 2006, October 30, 2006, and August 24,
2007. The Notice published today addresses the purpose and use of these
funds, while highlighting unique components of the three notices and
noting any changes made by HUD as the result of the required
reconsideration of the waivers. For the most part, HUD is repeating or
restating the original explanatory text so that grantees and program
administrators may continue to have the explanation of a changed
requirement and the requirement itself in a single document.
DATES: Effective Date: August 8, 2008.
FOR FURTHER INFORMATION CONTACT: Jessie Handforth Kome, Director,
Disaster Recovery and Special Issues Division, Office of Block Grant
Assistance, Department of Housing and Urban Development, 451 Seventh
Street, SW., Room 7286, Washington, DC 20410, telephone number 202-708-
3587. Persons with hearing or speech impairments may access this number
via TTY by calling the Federal Information Relay Service at 800-877-
8339. Fax inquiries may be sent to Ms. Kome at 202-401-2044. (Except
for the 800 number, these telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
Authority To Grant Waivers
The Department of Defense, Emergency Supplemental Appropriations to
Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act,
2006 (Pub. L. 109-148, approved December 30, 2005) (Appropriations Act)
appropriated $11.5 billion, and Chapter 9 of Title II of the Emergency
Supplemental Appropriations Act for Defense, the Global War on Terror,
and Hurricane Recovery, 2006 (Pub. L. 109-234, approved June 15, 2006),
appropriated $5.2 billion for a combined total of $16.7 billion in CDBG
funds for necessary expenses related to disaster relief, long-term
recovery, and restoration of infrastructure directly related to the
consequences of the covered disasters. These 2006 Acts (collectively
``the supplemental Acts'') authorize the Secretary to waive, or specify
alternative requirements for, any provision of any statute or
regulation that the Secretary administers in connection with the
obligation by the Secretary or by the five eligible states' use of
these funds, except for requirements related to fair housing,
nondiscrimination, labor standards, and the environment, upon a request
by one of the five states and a finding by the Secretary that such a
waiver would not be inconsistent with the overall purpose of the
statute. The difference between the waiver authorizations in the
supplemental Acts is that Public Law 109-148 directs that the Secretary
``shall'' make the waivers in response to a state's request and a
consistency finding, while Public Law 109-234 states that the Secretary
``may'' make such waivers.
This Notice reconsiders and generally affirms the waivers made
under the three ``common'' Notices governing grant funds for CDBG
disaster recovery grants for the purpose of assisting in the recovery
in the most impacted and distressed areas related to the consequences
of Hurricanes Katrina, Rita, and Wilma in the Gulf of Mexico in 2005.
These prior notices were published in the Federal Register on February
13, 2006 (71 FR 7666), October 30, 2006 (71 FR 63337), and August 24,
2007 (72 FR 48804). The reconsideration of the February 13, 2006,
Notice is required at this time. HUD is reconsidering the October 30,
2006, and August 24, 2007, Notices earlier than required by statute
because publication of all common waivers and alternative requirements
in a single Notice will produce a more sensible administrative and
regulatory result.
The following waivers and alternative requirements for funds
provided under either 2006 Act are in response to requests from all
five states receiving CDBG disaster recovery grants under those Acts.
In accordance with the states' earlier requests for administrative
consistency to the extent feasible (noted in 71 FR 63337, published
October 30, 2006), each waiver or alternative requirement will apply to
assistance
[[Page 46313]]
provided under either Act wherever appropriate and possible.
After reconsideration, the Secretary affirms that the following
waivers and alternative requirements, as described below, are not
inconsistent with the overall purpose of Title I of the Housing and
Community Development Act of 1974, as amended, or the Cranston-Gonzalez
National Affordable Housing Act, as amended.
Under the requirements of the Department of Housing and Urban
Development Reform Act of 1989 (the HUD Reform Act), as amended 42
U.S.C. 3535(q), regulatory waivers must be justified and published in
the Federal Register.
Further, the supplemental Acts direct the Secretary to publish in
the Federal Register any waiver (or reconsideration thereof) of any
statute or regulation that the Secretary administers pursuant to Title
I of the Housing and Community Development Act of 1974, no later than 5
days before the effective date of such waiver.
Except as described in this and other notices applicable to these
grants, statutory and regulatory provisions governing the CDBG program
for states, including those at 24 CFR part 570, shall apply to the use
of these funds. In accordance with the supplemental Acts, HUD is
reconsidering every published waiver 2 years from its date of
publication.
Allocations
The supplemental Acts provide a combined total of $16.7 billion for
the CDBG program for:
Necessary expenses related to disaster relief, long-term
recovery, and restoration of infrastructure in the most impacted and
distressed areas related to the consequences of Hurricanes Katrina,
Rita, or Wilma in the Gulf of Mexico in 2005.
The $11.5 billion allocation appropriated under Public Law 109-148
is also discussed and expanded upon in the conference report (H.R. Rep.
No. 109-359). The conference agreement included $11.5 billion for
necessary expenses related to disaster relief, long-term recovery,
restoration of infrastructure, and mitigation in communities in any
declared disaster area in Louisiana, Mississippi, Alabama, Florida, and
Texas related to Hurricanes Katrina, Rita, or Wilma. The conference
agreement emphasizes the requirement that the states with the most
impacted and distressed areas in connection with the Gulf of Mexico
hurricanes receive priority consideration in the allocation of funds by
HUD.
Public Law 109-148 further states:
That funds provided under this heading shall be administered
through an entity or entities designated by the Governor of each
state. And that no state shall receive more than 54 percent of the
amount provided under this heading.
Public Law 109-234 also states:
That funds provided under this heading shall be administered
through an entity or entities designated by the Governor of each
state. And that no state shall receive more than $4.2 billion of the
amount provided under this heading.
As provided for in Public Law 109-148 and Public Law 109-234, the
funds may not be used for activities reimbursable by or for which funds
are made available by the Federal Emergency Management Agency (FEMA) or
the Army Corps of Engineers. Further, none of the funds made available
under Public Law 109-234 may be used by a state or locality as a
matching requirement, share, or contribution for any other federal
program.
Also as required by Public Law 109-234, not less than $1.0 billion
of the $5.2 billion appropriation (which computes to 19.3311 percent of
any state's allocation, excluding $27.0 million in administrative set-
asides) shall be used for repair, rehabilitation, and reconstruction
(including demolition, site clearance, and remediation) of the
affordable rental housing stock (including public and other HUD-
assisted housing) in the impacted areas. Therefore, HUD requires that
not less than 19.3311 percent of each state's grant under Public Law
109-234 be used for these activities.
The allocations from Public Law 109-148 are as follows:
Table 1--February 13, 2006, Disaster Recovery Allocation
------------------------------------------------------------------------
Allocation
State Disaster amount ($)
------------------------------------------------------------------------
Alabama...................... Hurricane Katrina (FEMA- 74,388,000
1605-DR).
Florida...................... Hurricane Katrina (FEMA- 82,904,000
1602-DR), Hurricane
Wilma (FEMA-1609-DR).
Louisiana.................... Hurricane Katrina (FEMA- 6,210,000,000
1603-DR), Hurricane
Rita (FEMA-1607-DR).
Mississippi.................. Hurricane Katrina (FEMA- 5,058,185,000
1604-DR).
Texas........................ Hurricane Rita (FEMA- 74,523,000
1606-DR).
------------------------------------------------------------------------
The allocations from the supplemental appropriation, as provided
for in Public Law 109-234, are as follows:
Table 2--October 30, 2006, Disaster Recovery Supplemental Allocation
----------------------------------------------------------------------------------------------------------------
Minimum amount
Allocation for affordable
State Disaster amount ($) rental housing
($)
----------------------------------------------------------------------------------------------------------------
Alabama.................................... Hurricane Katrina (FEMA-1605- 21,225,574 4,103,146
DR).
Florida.................................... Hurricane Katrina (FEMA-1602- 100,066,518 19,344,001
DR), Hurricane Wilma (FEMA-
1609-DR).
Louisiana.................................. Hurricane Katrina (FEMA-1603- 4,200,000,000 811,907,984
DR), Hurricane Rita (FEMA-1607-
DR).
Mississippi................................ Hurricane Katrina (FEMA-1604- 423,036,059 81,777,703
DR).
Texas...................................... Hurricane Rita (FEMA-1606-DR).. 428,671,849 82,867,166
----------------------------------------------------------------------------------------------------------------
[[Page 46314]]
The amounts in Table 2 include the minimum amount of the
allocations each state is required to use, pursuant to Public Law 109-
234, for repair, rehabilitation, and reconstruction (including
demolition, site clearance, and remediation) of the affordable rental
housing stock (including public and other HUD-assisted housing) in the
impacted areas.
In the case of Louisiana, the Department reviewed data chronicling
the massive impact of the disasters on affordable rental housing,
including public housing, in the areas of the state most affected by
the disasters. In light of the state's unprecedented housing needs
resulting from the disasters, the Secretary gave priority to affordable
rental housing through an alternative requirement on the grant under
Public Law 109-234. Under a prior Notice, HUD required that before the
state of Louisiana expended any funds to meet the minimum requirement
for affordable rental housing (see table above), the Governor of
Louisiana had to demonstrate to the Secretary's satisfaction that the
state will provide funds or has identified dedicated resources
sufficient to meet the key disaster recovery needs for repair,
rehabilitation, and reconstruction of affordable rental housing stock,
including public housing, in the most impacted areas of the state. This
notice continues the requirement to ensure that any fund reprogramming
continues to prioritize such housing.
Pursuant to this Notice, HUD continues to invite each of the five
states to submit an Action Plan for Disaster Recovery in accordance
with prior Notices.
The supplemental Acts require that funds be used only for disaster
relief, long-term recovery, and restoration of infrastructure in the
most impacted and distressed areas related to the consequences of
hurricanes in the Gulf of Mexico in 2005. The supplemental Acts direct
that each grantee describe in its Action Plan for Disaster Recovery how
the use of the grant funds gives priority to infrastructure development
and the rehabilitation and reconstruction of the affordable rental
housing stock, including public and other HUD-assisted housing. HUD
monitors compliance with this direction and may be compelled to
disallow expenditures if it finds that uses of funds are not disaster-
related, or that funds allocated duplicate other benefits. HUD
encourages grantees to contact their assigned HUD offices for guidance
in complying with these requirements during development of their Action
Plans for Disaster Recovery and any amendments or if they have any
questions regarding meeting these requirements.
For the state of Louisiana, which suffered major impacts from two
of the hurricanes, HUD estimated that more than 85 percent of the major
and severe damage due to those storms was in the New Orleans-Metairie-
Bogalusa Metropolitan Area (Jefferson, Orleans, Plaquemines, St.
Bernard, St. Charles, St. John the Baptist, and St. Tammany parishes).
HUD, therefore, expects the state to target a substantial majority of
its disaster recovery funds under Public Law 109-234 toward the
disaster recovery needs in the New Orleans-Metairie-Bogalusa
Metropolitan Area, and included an alternative requirement to that
effect.
Prevention of Fraud, Abuse, and Duplication of Benefits
The supplemental Acts also directed the Secretary to: Establish
procedures to prevent recipients from receiving any duplication of
benefits and report quarterly to the Committees on Appropriations
with regard to all steps taken to prevent fraud and abuse of funds
made available under this heading, including duplication of
benefits.
To meet this directive, HUD has taken five courses of action.
First, HUD established by Notice specific reporting, written
procedures, monitoring, and internal audit requirements for grantees.
Second, to the extent that its resources allowed, HUD instituted risk
analysis and on-site monitoring of grantee management of the grants and
of the specific uses of funds. Third, HUD has been extremely cautious
in considering any waiver related to basic financial management
requirements. The standard, time-tested CDBG financial requirements
will continue to apply to future waiver requests. Fourth, HUD
collaborated with the HUD Office of Inspector General to plan and
implement oversight of these funds. Fifth, HUD followed the direction
of the conference report for Public Law 109-494 and applied $6 million
of funds appropriated for the Working Capital Fund for ``immediate
enhancement of the capabilities of the Disaster Recovery Grant
Reporting system by building additional electronic controls that are
intended to increase accountability while further decreasing the risk
of fraud, waste, or abuse.''
Waiver Justification
In general, waivers already granted to the states of Alabama,
Florida, Louisiana, Mississippi, and Texas and alternative requirements
already specified for CDBG disaster recovery grant funds provided under
the supplemental Acts apply unless determined to be excepted or limited
under this Notice. The notices in which these prior waivers and
alternative requirements appear are shown in the table below.
------------------------------------------------------------------------
Notice Date Applicability
------------------------------------------------------------------------
71 FR 7666, FR-5051-N-01...... 02/13/2006 Common Allocation/
Application for $11.5
billion.
71 FR 34448, FR-5051-N-02..... 06/14/2006 State of Alabama.
71 FR 34451, FR-5051-N-04..... 06/14/2006 State of Louisiana.
71 FR 34457, FR-5051-N-03..... 06/14/2006 State of Mississippi.
71 FR 43622, FR-5051-N-05..... 08/01/2006 State of Texas.
71 FR 51678, FR-5051-N-06..... 08/30/2006 State of Florida.
71 FR 62372, FR 5051-N-07..... 10/24/2006 State of Mississippi.
71 FR 63337, FR-5089-N-01..... 10/30/2006 Common Allocation/
Application, and
Applicability of Prior
Waivers for $5.2
billion.
72 FR 10014, FR-5089-N-03..... 03/06/2007 State of Louisiana.
72 FR 10020, FR-5089-N-04..... 03/06/2007 State of Mississippi.
72 FR 48804, FR-5089-N-05..... 08/24/2007 Common waiver of
Section 414 of the
Stafford Act and
alternative
requirements.
72 FR 48808, FR-5051-N-08..... 08/24/2007 State of Mississippi.
72 FR 61788, FR-5051-N-09..... 10/31/2007 State of Mississippi.
72 FR 70472, FR-5183-N-01..... 12/11/2007 State of Louisiana for
$3 billion.
------------------------------------------------------------------------
The provisions of this Notice do not apply to funds provided under
the regular CDBG program or other HUD or federally funded programs. The
provisions provide additional flexibility in program design and
implementation
[[Page 46315]]
and implement statutory requirements unique to these appropriations.
Section 414 of the Stafford Act
The states requested and were granted a waiver of Section 414 of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as
amended, for all their disaster recovery programs. Section 414 requires
special measures that are designed to assist the efforts of the five
states in expediting the rendering of aid and emergency services and in
the reconstruction and rehabilitation of devastated areas, as
necessary. In addition, the Secretary provided alternative requirements
more consistent with the purpose of the supplemental Acts, which have
assisted and supported disaster recovery in the areas most impacted by
the effects of the three 2005 Gulf hurricanes. Hurricanes Katrina,
Rita, and Wilma resulted in unprecedented destruction in the Gulf
states, which will continue to require reconstruction for many years
(and possibly decades) to come. The Department surveyed other federal
agencies' administration of Section 414 and found varying
interpretations for long-term, post-disaster projects involving the
acquisition, rehabilitation, or demolition of disaster-damaged housing.
The five states have also launched programs, such as rental
rehabilitation, that could be affected by this statute if a clear
direction to restore affordable rental housing to the devastated areas
is not realized. Therefore, to avoid possible risk to the recovery
effort by further delay in providing the states with a definitive
answer, the Department issued a partial statutory waiver and specified
alternative requirements. HUD is continuing this statutory waiver by
this Notice because affordable housing programs are under way in all
five of the states that rely on this waiver and alternative
requirements. For programs or projects covered by this waiver
(``covered programs or projects'') that are initiated within 3 years
after the applicable disaster, an affected state must select one of the
two alternative requirements specified in 72 FR 48804 and restated in
this Notice.
Alternative One
The state may provide relocation assistance to a former residential
occupant whose former dwelling is acquired, rehabilitated, or
demolished for a covered program or project initiated within 3 years
after the disaster, even though the actual displacements were caused by
the effects of the disaster. To the extent practicable, such relocation
assistance must be offered in a manner consistent with the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970, as amended, (URA) and its implementing regulations, except as
modified by applicable waivers and alternative requirements.
Alternative Two
If the state determines that the first alternative would
substantially conflict with meeting the disaster recovery purposes of
the supplemental Acts, the state may establish a re-housing plan for a
covered program or project initiated within 3 years after the disaster.
Such determinations must be made on a program or project basis (not
person or household). The re-housing plan must include, at minimum, the
following:
1. A description of the class(es) of persons eligible for
assistance, including all persons displaced from their residences by
particular enumerated, or all, effects of the disaster, and including
all persons still receiving temporary housing assistance from FEMA for
the covered disaster(s);
2. A description of the types and amount of financial assistance to
be offered, if any;
3. A description of other services to be made available, including,
at minimum, outreach efforts to eligible persons and housing counseling
providing information about available housing resources. Outreach
efforts and housing counseling information should be provided in
languages other than English to persons with limited English
proficiency; and
4. Contact information and a description of any applicable
application process, including any deadlines.
5. If the program or project involves rental housing, the re-
housing plan must also include the following:
(i) Placement services for former and prospective tenants;
(ii) A public registry of available rental units assisted with CDBG
disaster recovery and/or other funds; and
(iii) A description of application materials, award letters, and
operating procedures requiring property owners to make reasonable
attempts to contact their former residential tenants and offer them a
unit upon completion if they meet the program's eligibility
requirements.
Justification for Waiver
This section of the Notice describes the basis for granting the
section 414 waivers represented by the states in their requests. The
principal reasons are highlighted here:
Hurricanes Katrina, Rita, and Wilma caused unprecedented
destruction in the Gulf Coast region. The magnitude of destruction
resulted in massive displacements and decimated the region's affordable
housing stock. Continued ambiguity on Section 414's applicability may
cause substantial delays in long-term recovery along the Gulf Coast,
particularly in Louisiana, Mississippi, and Texas;
URA assistance may duplicate insurance proceeds and
federal, state, or local housing assistance that has already been
disbursed; and
The opportunity to simplify the administration of disaster
recovery projects or programs initiated years following the disaster.
Persons in physical occupancy who are displaced by a HUD-assisted
disaster recovery project will continue to be eligible for URA
assistance. Persons displaced by the effects of the disaster may
continue to apply for assistance under the states' approved disaster
recovery programs, which are designed to bring affordable housing to
the affected areas. This waiver does not address programs or projects
receiving other HUD funding, or funding from other federal sources.
A state may already be performing some elements of a re-housing
plan, such as providing a public rental registry or undertaking
outreach and placement services to those former residents still
receiving FEMA housing assistance. Description in the re-housing plan
of how those existing efforts will be available for covered programs or
projects may be used in satisfying the requirements of this Notice.
These waivers and alternative requirements streamline the pre-grant
process and set the guidelines for a state's application for
allocations.
Application for Allocations Under Public Laws 109-148 and 109-234
Overall benefit to low- and moderate-income persons. Pursuant to
explicit authority in the supplemental Acts, HUD granted an overall
benefit waiver that allows for up to 50 percent of the grants to assist
activities under the urgent need or under the prevention or elimination
of slums and blight national objectives, rather than the 30 percent
allowed in the annual state CDBG program. The primary objective of
Title I of the Housing and Community Development Act of 1974 and of the
funding program of each grantee is ``development of viable urban
communities, by providing decent housing and a suitable living
environment and expanding economic opportunities, principally for
persons of
[[Page 46316]]
low and moderate income.'' The statute goes on to set the standard of
performance for this primary objective for the annual CDBG program at
70 percent of the aggregate of the funds used for support of activities
producing benefit to low- and moderate-income persons. Because
extensive damage to community development and housing affected those
with varying incomes, and the hardest-hit grantees have designed their
programs to take advantage of this waiver, HUD is retaining the waiver
of the 70 percent overall benefit requirement and leaving the 50
percent requirement, in order to give grantees continued flexibility to
carry out recovery activities within the confines of the CDBG program
national objectives. HUD may provide additional waivers of this
requirement only if it makes a finding of compelling need. The
requirement that each activity meet one of the three national
objectives is not waived. HUD did reconsider, but is not altering this
waiver. The states have already budgeted the vast majority of the funds
under the terms of the initial waiver. Changing the waiver and
alternative requirement now might be counter-productive to the recovery
efforts across the Gulf Coast and, most particularly, in Louisiana. The
state of Mississippi has been granted additional overall benefit
waivers and alternative requirements as published in Notices other than
the three under reconsideration in the current Notice. The first of
Mississippi's other Notices is scheduled for reconsideration in June
2008.
Expanded distribution and direct action. The waivers and
alternative requirements allowing distribution of funds by a state to
entitlement communities and Indian tribes, and to allow a state to
carry out activities directly rather than distribute all funds to units
of local government, are consistent with waivers granted for previous
similar disaster recovery cases. HUD believes that, in recommending the
Lower Manhattan Development Corporation (LMDC) as a model and in
increasing the administrative cap, Congress is signaling its intent
that the states under this appropriation also be able to carry out
activities directly. Therefore, HUD waived and continues its waiver of
certain program requirements to support direct implementation of
activities by the states. HUD stated in prior Notices and restates in
this Notice the necessary complementary waivers and alternative
requirements related to subrecipients to ensure proper management and
disposition of funds during the grant execution and at closeout.
Consistency with the consolidated plan. HUD waived the requirement
for consistency with the consolidated plan priorities because the
effects of a major disaster usually alter a grantee's priorities for
meeting housing, employment, and infrastructure needs. To emphasize
that uses of grant funds must be consistent with the overall purposes
of the Housing and Community Development Act of 1974, HUD requires the
scope of the waiver to be consistent with the consolidated plan; the
waiver applies only until the grantee first updates its consolidated
plan priorities following the disaster. Because of limited data
availability or staff resources, not all grantees have completely
updated their consolidated plans. Therefore, HUD is continuing this
waiver.
Action Plan for Disaster Recovery. HUD waived the CDBG action plan
requirements and substituted an Action Plan for Disaster Recovery. HUD
is continuing this waiver and restates the Action Plan for Disaster
Recovery requirements under this Notice. This waiver allowed for rapid
implementation of disaster recovery grant programs and ensured
conformance with provisions of the supplemental Acts. Where possible,
the Action Plan for Disaster Recovery, including certifications, does
not repeat common action plan elements that the grantee already
committed to carry out as part of its annual CDBG submission. Although
a state as the grantee may designate an entity or entities to
administer the funds, the state is responsible for compliance with
federal requirements. During the course of these grants, HUD is
monitoring the states' uses of funds and their actions for consistency
with the Action Plan. A state may submit an initial, partial Action
Plan and amend it one or more times subsequently until the Action Plan
describes uses for the combined total grant amount. A state may also
amend activities in its Action Plan.
The following new elements to a state's Action Plan for Disaster
Recovery apply only to the supplemental funds allocated under Public
Law 109-234:
These elements include a description of how the state gives
priority to infrastructure development and rehabilitation and how the
state gives priority to the rehabilitation and reconstruction of the
affordable rental housing stock, including public and other HUD-
assisted housing. The state must explain how its choices for the use of
funds will result in the state meeting the requirement to use not less
than 19.3311 percent of its allocation under Public Law 109-234 for
repair, rehabilitation, and reconstruction (including demolition, site
clearance, and remediation) of the affordable rental housing stock
(including public and other HUD-assisted housing) in the impacted
areas. The explanation should include how the state has considered the
unique challenges that individuals with disabilities face in finding
accessible and affordable housing.
Citizen participation. The citizen participation waiver and
alternative requirements permit a more streamlined public process, but
one that still provides for reasonable public notice, appraisal,
examination, and comment on the CDBG disaster recovery grant fund
activities. The waiver removes the requirement at both the grantee and
state grant recipient levels for public hearings or meetings as the
method for disseminating information or collecting citizen comments.
Instead, grantees are encouraged to employ innovative methods to
communicate with citizens and solicit their views on proposed uses of
disaster recovery funds, and to indicate in the Action Plan how the
grantee has addressed these views. After reconsidering this waiver, HUD
decided to leave it in place because the need for speedy decision-
making is still necessary in some of the states. However, HUD is
providing guidance that, as time since the hurricanes elapses, HUD
expects grantees to provide for increased time for public comments and
for provision of public hearings related to amendments to the Action
Plan whenever hearings are administratively feasible. HUD notes that
most grantees are making good use of the Internet to provide disaster
recovery information on plan amendments and resources for their
citizens, and HUD expects this practice will continue.
Administration limitation. State program administration
requirements must be modified to be consistent with the Appropriations
Act, which allows up to 5 percent of the grant to be used for the
state's administrative costs. The provisions at 42 U.S.C. 5306(d) and
24 CFR 570.489(a)(1)(i) and (iii) will not apply to the extent that
they cap state administration expenditures and require a dollar-for-
dollar match of state funds for administrative costs exceeding
$100,000. HUD does not waive 24 CFR 570.489(a)(3) to allow the state to
exceed the overall planning, management, and administrative cap of 20
percent.
[[Page 46317]]
Use of Subrecipients
The state CDBG program rule does not make specific provision for
the treatment of the entities called ``subrecipients'' in the CDBG
entitlement program. The waiver allowing a state to carry out
activities directly creates a situation in which the state may use
subrecipients to carry out activities in a manner similar to
entitlement communities. HUD and its Office of Inspector General have
long identified the use of subrecipients as a practice that increases
the risk of abuse of funds. HUD's experience is that this risk can be
successfully managed by adhering to the CDBG entitlement requirements
and related guidance. Therefore, HUD requires that a state taking
advantage of the waiver allowing it to carry out activities directly
must follow the alternative requirements that are drawn from the CDBG
entitlement rule and specified in this Notice, when using
subrecipients.
Reporting
HUD waives the annual reporting requirement because Congress
requires quarterly reports from the grantees and from HUD on various
aspects of the uses of funds and of the activities funded with these
grants. Many of the data elements the grantees will report to Congress
quarterly are the same as those that HUD uses to exercise oversight for
compliance with the requirements of this Notice and for prevention of
fraud, abuse of funds, and duplication of benefits. To collect these
data elements and to meet its reporting requirements, HUD requires each
grantee to report to HUD quarterly using the online Disaster Recovery
Grant Reporting system. HUD uses grantee reports to monitor for
anomalies or performance problems that suggest fraud, abuse of funds,
and duplication of benefits; to reconcile budgets, obligations, fund
draws, and expenditures; to calculate applicable administrative and
public service limitations and the overall percent of benefit to low-
and moderate-income persons; and to establish a basis for risk analysis
in determining a monitoring plan.
Originally, HUD's guidance was that after HUD reviews each report
and accepts a report, the grantee must post the report on an Internet
site with public access for its citizens. On reconsideration, HUD is
requiring grantees to post each report as it is submitted. After HUD
reviews the report, the grantee may also post the reviewed version, if
HUD makes any changes. If a grantee chooses, it may use its report,
together with a statement regarding any sole source procurements, as
its required quarterly submission to the Committees on Appropriations.
Each quarter, HUD will submit to the Committees a summary description
of its report reviews, of other HUD monitoring and technical assistance
activities undertaken during the quarter, and of any significant
conclusions related to fraud, abuse of funds, or duplication of
benefits.
Certifications
HUD waived the standard certifications and substituted alternative
certifications. The alternative certifications are tailored to CDBG
disaster recovery grants and remove certifications and references that
are redundant or appropriate to the annual CDBG formula program.
Applicable Rules, Statutes, Waivers, and Alternative Requirements
The following discussion is comprised of two parts: a common
section that applies to Federal Register notices 71 FR 7666, 71 FR
63337, and 72 FR 48804, and a unique section that highlights components
of these three notices that are different.
Common Section
1. General note. Prerequisites to a grantee's receipt of CDBG
disaster recovery assistance include adoption of a citizen
participation plan; publication of its proposed Action Plan for
Disaster Recovery; public notice and comment; and submission to HUD of
an Action Plan for Disaster Recovery, including certifications. Except
as described in this Notice, the statutory, regulatory, and notice
provisions that shall apply to the use of these funds are:
a. The state-specific Notices governing the funds appropriated
under Public Law 109-148 and Public Law 109-234 (the supplemental Acts)
and already published in the Federal Register;
b. Those governing the CDBG program for states, including those at
42 U.S.C. 5301 et seq. and 24 CFR part 570.
2. Overall benefit waiver and alternative requirement. The
requirements at 42 U.S.C. 5301(c), 42 U.S.C. 5304(b)(3)(A), and 24 CFR
570.484 that at least 70 percent of funds are for activities that
benefit low- and moderate-income persons are waived to stipulate that
at least 50 percent of disaster recovery grant funds from each grant
must assist activities that principally benefit low- and moderate-
income persons.
3. Section 414 of the Stafford Act waiver and alternative
requirements.
a. Section 414 of the Stafford Act, 42 U.S.C. 5181 (including its
implementing regulation at 49 CFR 24.403(d)), is waived to the extent
that it would apply to CDBG disaster recovery-funded programs or
projects initiated at least one year after the incident-date of
Hurricane Katrina, Rita, or Wilma (as applicable) by the states of
Alabama, Florida, Louisiana, Mississippi, and Texas under an approved
Action Plan for Disaster Recovery for its grants under Public Law 109-
148 or Public Law 109-234; provided that such program or project was
not planned, approved, or otherwise under way prior to the disaster.
b. For all programs or projects covered by this waiver (``covered
programs or projects'') that are initiated at least one year after but
within no more than 3 years after the applicable disaster, the states
of Alabama, Florida, Louisiana, Mississippi, and Texas must comply with
one of the following two alternative requirements (for programs or
projects initiated after the 3-year period, the alternative
requirements would not apply; only the waiver would be applicable):
1. Relocation Assistance. The state may provide relocation
assistance to a former residential occupant whose former dwelling is
acquired, rehabilitated, or demolished for a covered program or project
initiated within 3 years after the disaster, even though the actual
displacements were caused by the effects of the disaster. To the extent
practicable, such relocation assistance must be offered in a manner
consistent with the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, as amended, and its implementing
regulations, except as modified by prior waivers and alternative
requirements granted to the states.
2. Re-housing Plan. If the state determines that the first
alternative would substantially conflict with meeting the disaster
recovery purposes of the supplemental Acts, the grantee may establish a
re-housing plan for a covered program or project initiated at least one
year after, but within no more than 3 years after, the disaster. Such a
determination must be made on a program or project basis (not person or
household). The re-housing plan must include, at minimum, the
following:
i. A description of the class(es) of persons eligible for
assistance, including all residents displaced from their residences by
either certain enumerated or all effects of the covered disaster, and
including all disaster-displaced residents still receiving temporary
housing assistance from FEMA for the covered disasters;
[[Page 46318]]
ii. A description of the types and amount of financial assistance
to be provided, if any;
iii. A description of other services to be made available,
including, at a minimum, outreach efforts to eligible persons and
housing counseling that provide information about available housing
resources;
iv. Contact information for additional program information;
v. A description of any applicable application process, including
any deadlines; and
vi. If the program or project covered by this waiver involves
rental housing, the grantee shall establish procedures for the
following:
A. Application materials, award letters, and operating procedures
that require property owners to make reasonable attempts to contact
their former tenants and to offer a unit, upon completion, to those
tenants meeting the program's eligibility requirements;
B. Placement services for former and prospective tenants; and
C. A public registry of available rental units assisted with CDBG
disaster recovery and/or other funds.
c. Eligible Project Costs. The cost of relocation assistance and
the reoccupancy plan are eligible project costs in the same manner and
to the same extent as other project costs authorized under the
supplemental Acts. For covered programs or projects involving
affordable rental housing, the relocation and planning costs required
by this Notice may be paid from funds reserved for the affordable
rental housing stock in the impacted areas under Public Law 109-234.
4. Direct grant administration by states and means of carrying out
eligible activities. Requirements at 42 U.S.C. 5306 are waived to the
extent necessary to allow the state to use its disaster recovery grant
allocation directly to carry out state-administered activities eligible
under this Notice. Activities eligible under this Notice may be
undertaken, subject to state law, by the recipient through its
employees or through procurement contracts, through loans or grants
under agreements with subrecipients, or by one or more entities that
are designated by the chief executive officer of the state. Activities
made eligible under section 105(a)(15) of the Housing and Community
Development Act of 1974, as amended, may be undertaken only by entities
specified in that section, regardless of whether the assistance is
provided to such an entity from the state or from a unit of general
local government.
5. Consolidated Plan waiver. Requirements at 42 U.S.C. 12706 and 24
CFR 91.325(a)(6), that housing activities undertaken with CDBG funds be
consistent with the strategic plan, are waived. Further, the
requirement at 42 U.S.C. 5304(e), to the extent that it would require
HUD to annually review grantee performance under the consistency
criteria, is also waived. These waivers apply only until the time that
the grantee first updates its consolidated plan priorities following
the hurricane.
6. Citizen participation waiver and alternative requirement.
Provisions of 42 U.S.C. 5304(a)(2) and (3), 42 U.S.C. 12707, 24 CFR
570.486, and 24 CFR 91.115(b), with respect to citizen participation
requirements, are waived and replaced by the requirements below. The
streamlined requirements do not mandate public hearings at either the
state or local government level, but do require providing a reasonable
opportunity for citizen comment and ongoing citizen access to
information about the use of grant funds. The streamlined citizen
participation requirements for this grant are:
a. Before the grantee adopts the action plan for this grant or any
substantial amendment to this grant, the grantee will publish the
proposed plan or amendment (including the information required in this
Notice for an Action Plan for Disaster Recovery). The manner of
publication (including prominent posting on the state, local, or other
relevant Web site) must afford citizens, affected local governments,
and other interested parties a reasonable opportunity to examine the
plan or amendment's contents. Subsequent to publication, the grantee
must provide a reasonable time period and method(s) (including
electronic submission) for receiving comments on the plan or on any
substantial amendment to it. The grantee's plans to minimize
displacement of persons or entities and to assist any persons or
entities displaced must be published with the action plan. HUD expects
the grantee to hold a public hearing on a proposed plan amendment
unless doing so would hinder the provision of expedient disaster
recovery.
b. In the action plan, each grantee will specify its criteria for
determining what changes in the grantee's activities constitute a
substantial amendment to the plan. At a minimum, adding or deleting an
activity or changing the planned beneficiaries of an activity will
constitute a substantial change. The grantee may modify or
substantially amend the action plan if it follows the same procedures
required in this Notice for the preparation and submission of an Action
Plan for Disaster Recovery. The grantee must notify HUD, but is not
required to notify the public, when it makes any plan amendment that is
not substantial.
c. The grantee must consider all comments received on the action
plan or any substantial amendment and submit to HUD a summary of those
comments and the grantee's response with the action plan or substantial
amendment.
d. The grantee must make the action plan, any substantial
amendments, and all performance reports available to the public. HUD
recommends posting them on the Internet. In addition, the grantee must
make these documents available in a form accessible to persons with
disabilities and non-English-speaking persons. During the term of this
grant, the grantee will provide citizens, affected local governments,
and other interested parties with reasonable and timely access to
information and records relating to the action plan and to the
grantee's use of this grant.
e. The grantee will provide a timely written response to every
citizen complaint. Such response will be provided within 15 working
days of the receipt of the complaint, if practicable.
7. Modify requirement for consultation with local governments.
Currently, the statute and regulations require consultation with
affected units of local government in the non-entitlement area of the
state regarding the state's proposed method of distribution. HUD is
waiving 42 U.S.C. 5306(d)(2)(C)(iv), 24 CFR 91.325(b), and 24 CFR
91.110, with the alternative requirement that the state consult with
all disaster-affected units of general local government, including any
CDBG entitlement communities, in determining the use of funds.
8. Action Plan waiver and alternative requirement. The requirements
at 42 U.S.C. 12705(a)(2), 42 U.S.C. 5304(a)(1), 42 U.S.C. 5304(m), 42
U.S.C. 5306(d)(2)(C)(iii), 24 CFR 1003.604, and 24 CFR 91.320 are
waived for these disaster recovery grants. Each state must submit to
HUD an Action Plan for Disaster Recovery that describes:
a. The effects of the covered disaster, especially in the most
impacted areas and populations, and the greatest recovery needs
resulting from the covered disaster that have not been addressed by
insurance proceeds, other federal assistance, or any other funding
source;
b. The grantee's overall plan for disaster recovery, including:
1. How the state will promote sound short- and long-term recovery
planning at the state and local levels, especially land use decisions
that reflect
[[Page 46319]]
responsible flood plain management, removal of regulatory barriers to
reconstruction, and prior coordination with planning requirements of
other state and federal programs and entities;
2. How the state will encourage construction methods that emphasize
high quality, durability, energy efficiency, and mold resistance,
including how the state will promote enactment and enforcement of
modern building codes and mitigation of flood risk, where appropriate;
3. How the state will provide or encourage provision of adequate,
flood-resistant housing for all income groups that lived in the
disaster-impacted areas prior to the incident date(s) of the applicable
disaster(s), including a description of the activities it plans to
undertake to address emergency shelter and transitional housing needs
of homeless individuals and families (including subpopulations), to
prevent low-income individuals and families with children (especially
those with incomes below 30 percent of median) from becoming homeless,
to help homeless persons make the transition to permanent housing and
independent living, and to address the special needs of persons who are
not homeless-identified, in accordance with 24 CFR 91.315(d);
c. Monitoring standards and procedures that are sufficient to
ensure that program requirements, including non-duplication of
benefits, are met and that provide for continual quality assurance,
investigation, and internal audit functions, with responsible staff
reporting independently to the Governor of the state or, at a minimum,
to the chief officer of the governing body of any designated
administering entity;
d. A description of the steps the state will take to avoid or
mitigate occurrences of fraud, abuse, and mismanagement, especially
with respect to accounting, procurement, and accountability, with a
description of how the state will provide for increasing the capacity
for implementation and compliance of local governments, subrecipients,
subgrantees, contractors, and any other entity responsible for
administering activities under this grant; and
e. The state's method of distribution. The method of distribution
shall include descriptions of the method of allocating funds to units
of local government and of specific projects the state will carry out
directly, as applicable. The descriptions will include:
1. When funds are to be allocated to units of local government; and
all criteria used to select applications from local governments for
funding, including the relative importance of each criterion, and
including a description of how the disaster recovery grant resources
will be allocated among all funding categories, plus the threshold
factors and grant size limits that are to be applied; and
2. In cases where the state will carry out activities directly, the
projected uses for the CDBG disaster recovery funds broken down by
responsible entity, activity, and geographic area;
3. How the method of distribution or use of funds described in
accordance with the above subparagraphs will result in eligible uses of
grant funds related to long-term recovery from specific effects of the
disaster(s) or restoration of infrastructure; and
4. Sufficient information so that citizens, units of general local
government, and other eligible subgrantees or subrecipients will be
able to understand and comment on the action plan and, if applicable,
be able to prepare responsive applications to the state.
f. Required certifications (see the applicable Certifications
section of this Notice); and
g. A completed and executed federal form SF-424.
9. Allow reimbursement for pre-agreement costs. The provisions of
24 CFR 570.489(b) are applied to permit a grantee to reimburse itself
for otherwise allowable costs incurred on or after the incident date of
the covered disaster.
10. Clarifying note on the process for environmental release of
funds when a state carries out activities directly. Usually, a state
distributes CDBG funds to units of local government and takes on HUD's
role in receiving environmental certifications from the grant
recipients and approving releases of funds. For this grant, HUD will
allow a state grantee to also carry out activities directly instead of
distributing all funds to other governments. According to the
environmental regulations at 24 CFR 58.4, when a state carries out
activities directly, the state must submit the certification and
request for release of funds to HUD for approval.
11. Duplication of benefits. In general, 42 U.S.C. 5155 (section
312 of the Robert T. Stafford Disaster Assistance and Emergency Relief
Act, as amended) prohibits any person, business concern, or other
entity from receiving financial assistance with respect to any part of
a loss resulting from a major disaster as to which such person/
business/entity has received financial assistance under any other
program or from insurance or any other source. The appropriations acts
stipulate that funds may not be used for activities reimbursable by, or
for which funds have been made available by, the Federal Emergency
Management Agency or by the Army Corps of Engineers.
12. Waiver and alternative requirement for distribution to CDBG
metropolitan cities and urban counties.
a. Section 5302(a)(7) of title 42, U.S.C. (definition of ``non-
entitlement area''), and provisions of 24 CFR part 570 that would
prohibit a state from distributing CDBG funds to units of general local
government in entitlement communities and to Indian tribes, are waived,
including 24 CFR 570.480(a), to the extent that such provisions limit
the distribution of funds to units of general local government located
in entitlement areas and to state or federally recognized Indian
tribes. The state is required instead to distribute funds to the most
adversely affected and impacted areas related to the consequences of
the covered disaster(s) without regard to a local government or Indian
tribe status under any other CDBG program.
b. Additionally, because a state grantee under this appropriation
may carry out activities directly, HUD is applying the regulations at
24 CFR 570.480(c) with respect to the basis under which HUD determines
whether the state has failed to carry out its certifications; the basis
shall be that the state has failed to carry out its certifications in
compliance with applicable program requirements. Also, HUD is waiving
24 CFR 570.494, regarding timely distribution of funds. However, HUD
expects each state grantee to expeditiously obligate and expend all
funds, including any recaptured funds or program income, and to carry
out activities in a timely manner.
13. Note that use of grant funds must relate to the covered
disaster(s). The supplemental Acts impose fundability criteria in
addition to the annual CDBG requirement that each activity must be
eligible under 42 U.S.C. 5305(a) or this Notice and meet a CDBG
national objective under the penultimate paragraph of 42 U.S.C.
5304(b)(3). Public Laws 109-148 and 109-234 require that each activity
assisted must be related to disaster relief, long-term recovery, and
restoration of infrastructure in the most impacted and distressed areas
related to the consequences of Hurricanes Katrina, Rita, and Wilma in
communities included in Presidential disaster declarations.
14. Note on the change to the administration limitation. Up to 5
percent of the grant amount may be used for the state's administrative
costs.
[[Page 46320]]
The provisions of 42 U.S.C. 5306(d) and 24 CFR 570.489(a)(1)(i) and
(iii) will not apply to the extent that they cap state administration
expenditures and require a dollar-for-dollar match of state funds for
administrative costs exceeding $100,000. HUD does not waive 24 CFR
570.489(a)(3) to allow a state to exceed the overall planning,
management, and administrative cap of 20 percent.
Reporting
15. Waiver of performance report and alternative requirement. The
requirements for submission of a Performance Evaluation Report (PER)
pursuant to 42 U.S.C. 12708 and 24 CFR 91.520 are waived. The
alternative requirement is that:
a. Each grantee must submit its Action Plan for Disaster Recovery,
including performance measures, into HUD's Web-based Disaster Recovery
Grant Reporting (DRGR) system. (The signed certifications and the form
SF-424 must be submitted in hard copy.) As additional detail about uses
of funds becomes available to the grantee, the grantee must enter this
detail into DRGR, in sufficient detail to serve as the basis for
acceptable performance reports.
b. Each grantee must submit a quarterly performance report, as HUD
prescribes, no later than 30 days following each calendar quarter,
beginning after the first full calendar quarter, after grant award and
continuing until all funds have been expended and all expenditures
reported. Each quarterly report will include information about the uses
of funds during the applicable quarter, including (but not limited to)
the project name, activity, location, and national objective, funds
budgeted, obligated, drawn down, and expended; the funding source and
total amount of any non-CDBG disaster funds; beginning and ending dates
of activities; and performance measures such as numbers of low- and
moderate-income persons or households benefiting. Quarterly reports to
HUD must be submitted using HUD's Web-based DRGR system.
16. Use of subrecipients. The following alternative requirement
applies for any activity that a state carries out directly by funding a
subrecipient:
a. 24 CFR 570.503, except that specific references to 24 CFR parts
84 and 85 need not be included in subrecipient agreements.
b. 570.502(b), except to the extent that it mandates compliance
with Office of Management and Budget (OMB) Circular A-110 (implemented
at 24 CFR part 84, ``Uniform Administrative Requirements for Grants and
Agreements with Institutions of Higher Education, Hospitals and Other
Non-Profit Organizations''). HUD recommends application of 24 CFR part
84, but does not require it.
17. Recordkeeping. Recognizing that the state may carry out
activities directly, 24 CFR 570.490(b) is waived in such a case and the
following alternative provision shall then apply: state records. The
state shall establish and maintain such records as may be necessary to
facilitate review and audit by HUD of the state's administration of
CDBG disaster recovery funds under 24 CFR 570.493. Consistent with
applicable statutes, regulations, waivers and alternative requirements,
and other federal requirements, the content of records maintained by
the state shall be sufficient to: enable HUD to make the applicable
determinations described at 24 CFR 570.493; make compliance
determinations for activities carried out directly by the state; and
show how activities funded are consistent with the descriptions of
activities proposed for funding in the action plan. For fair housing
and equal opportunity purposes and, as applicable, such records shall
include data on the racial, ethnic, and gender characteristics of
persons who are applicants for, participants in, or beneficiaries of
the program.
18. Change of use of real property. This waiver conforms the change
of use of real property rule to the waiver allowing a state to carry
out activities directly. For purposes of this program, in 24 CFR
570.489(j), (j)(1), and the last sentence of (j)(2), ``unit of general
local government'' shall be read as ``unit of general local government
or state.''
19. Responsibility for state review and handling of noncompliance.
This change conforms the rule with the waiver allowing the state to
carry out activities directly. 24 CFR 570.492 is waived and the
following alternative requirement applies: The state shall make reviews
and audits, including on-site reviews of any subrecipients, designated
public agencies, and units of general local government as may be
necessary or appropriate to meet the requirements of section 104(e)(2)
of the Housing and Community Development Act of 1974, as amended, and
modified by this Notice. In the case of noncompliance with these
requirements, the state shall take such actions as may be appropriate
to prevent a continuance of the deficiency, to mitigate any adverse
effects or consequences, and to prevent a recurrence. The state shall
establish remedies for noncompliance by any designated public agencies
or units of general local governments and for its subrecipients.
20. Information collection approval note. HUD has approval for
information collection requirements in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520) under OMB control number
2506-0165. In accordance with the Paperwork Reduction Act, HUD may not
conduct or sponsor, nor is a person required to respond to, a
collection of information, unless the collection displays a valid
control number.
Certifications
21. Certifications for state governments, waiver, and alternative
requirement. Section 91.325 of title 24 of the Code of Federal
Regulations is waived. Each state must make the following
certifications prior to receiving a CDBG disaster recovery grant:
a. The state certifies that it will affirmatively further fair
housing, which means that it will conduct an analysis to identify
impediments to fair housing choice within the state, take appropriate
actions to overcome the effects of any impediments identified through
that analysis, and maintain records reflecting the analysis and actions
in this regard. (See 24 CFR 570.487(b)(2).)
b. The state certifies that it has in effect and is following a
residential anti-displacement and relocation assistance plan in
connection with any activity assisted with funding under the CDBG
program.
c. The state certifies its compliance with restrictions on lobbying
required by 24 CFR part 87, together with disclosure forms, if required
by that part.
d. The state certifies that the Action Plan for Disaster Recovery
is authorized under state law and that the state, and any entity or
entities designated by the state, possesses the legal authority to
carry out the program for which it is seeking funding, in accordance
with applicable HUD regulations and this Notice.
e. The state certifies that it will comply with the acquisition and
relocation requirements of the URA, as amended, and implementing
regulations at 49 CFR part 24, except where waivers or alternative
requirements are provided for this grant.
f. The state certifies that it will comply with section 3 of the
Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), and
implementing regulations at 24 CFR part 135.
g. The state certifies that it is following a detailed citizen
participation plan that satisfies the
[[Page 46321]]
requirements of 24 CFR 91.115 (except as provided for in notices
providing waivers and alternative requirements for this grant), and
that each unit of general local government that is receiving assistance
from the state is following a detailed citizen participation plan that
satisfies the requirements of 24 CFR 570.486 (except as provided for in
notices providing waivers and alternative requirements for this grant).
h. The state certifies that it has consulted with affected units of
local government in counties designated in covered major disaster
declarations in the non-entitlement, entitlement, and tribal areas of
the state in determining the method of distribution of funding;
i. The state certifies that it is complying with each of the
following criteria:
1. Funds will be used solely for necessary expenses related