60-Day Notice of Proposed Information Collection: HUD Multifamily Rental Project Closing Documents, 41977-41980 [2017-18742]
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Federal Register / Vol. 82, No. 170 / Tuesday, September 5, 2017 / Notices
This
notice informs the public that HUD is
seeking approval from OMB for the
information collection described in
Section A.
SUPPLEMENTARY INFORMATION:
A. Overview of Information Collection
Title of Information Collection:
Continuation of Interest Reduction
Payments after Refinancing Section 236
Projects.
OMB Approval Number: 2502–0572.
Type of Request: Revision of currently
approved collection.
Form Number:
• Form HUD–93173 Agreement for
Interest Reduction Payments
(§ 236(e)(2))
• form HUD–93175 Agreement for
Interest Reduction Payments
(§ 236(b))
• form HUD–93174 Use Agreement
(§ 236(e)(2))
• form HUD–93176 Use Agreement
(§ 236(b))
Description of the need for the
information and proposed use: The
purpose of this information collection is
to preserve low-income housing units.
HUD uses the information to ensure that
owners, mortgagees and or public
entities enter into binding agreements
for the continuation of Interest
Reduction Payments (IRP) after
refinancing eligible Section 236
projects. HUD has created an electronic
application for eligible projects to retain
the IRP benefits after refinancing.
Respondents (i.e. affected public):
Profit Motivated or Non-Profit Owners
of Section 236 projects.
Estimated Number of Respondents:
875.
Estimated Number of Responses:
1,750.
Frequency of Response: 1.
Average Hours per Response: 1 hour.
Total Estimated Burdens: 1,750.
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B. Solicitation of Public Comment
This notice is soliciting comments
from members of the public and affected
parties concerning the collection of
information described in Section A on
the following:
(1) Whether the proposed collection
of information is necessary for the
proper performance of the functions of
the agency, including whether the
information will have practical utility;
(2) The accuracy of the agency’s
estimate of the burden of the proposed
collection of information;
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on those
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who are to respond; including through
the use of appropriate automated
collection techniques or other forms of
information technology, e.g., permitting
electronic submission of responses.
HUD encourages interested parties to
submit comment in response to these
questions.
Authority: Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C. Chapter 35.
Dated: August 29, 2017.
Dana Wade,
General Deputy Assistant Secretary for
Housing.
[FR Doc. 2017–18744 Filed 9–1–17; 8:45 am]
41977
SW., Washington, DC 20410. This is not
a toll-free number. Persons with hearing
or speech impairments may access this
number through TTY by calling the tollfree Federal Relay Service at (800) 877–
8339.
Copies of available documents to be
submitted to OMB may be found at:
https://portal.hud.gov/hudportal/
HUD?src=/program_offices/housing/
mfh/mfhclosingdocuments.
SUPPLEMENTARY INFORMATION: This
notice informs the public that HUD is
seeking approval from OMB for the
information collection described in
Section A.
BILLING CODE 4210–67–P
A. Overview of Information Collection
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
[Docket No. FR–6001–N–28]
60-Day Notice of Proposed Information
Collection: HUD Multifamily Rental
Project Closing Documents
Office of the Assistant
Secretary for Housing—Federal Housing
Commissioner, HUD.
ACTION: Notice.
AGENCY:
HUD is seeking approval from
the Office of Management and Budget
(OMB) for the information collection
described below. In accordance with the
Paperwork Reduction Act, HUD is
requesting comments from all interested
parties on the proposed collection of
information. The purpose of this notice
is to allow for 60 days of public
comment.
SUMMARY:
Comments Due Date: November
6, 2017.
ADDRESSES: Interested persons are
invited to submit comments regarding
this proposal. Comments should refer to
the proposal by name and/or OMB
Control Number and should be sent to:
Colette Pollard, Reports Management
Officer, QDAM, Department of Housing
and Urban Development, 451 7th Street
SW., Room 4176, Washington, DC
20410–5000; telephone 202–402–3400
(this is not a toll-free number) or email
at Colette.Pollard@hud.gov for a copy of
the proposed forms or other available
information. Persons with hearing or
speech impairments may access this
number through TTY by calling the tollfree Federal Relay Service at (800) 877–
8339.
FOR FURTHER INFORMATION CONTACT:
Sylvia S. Chatman, Housing Program
Manager, Office of Multifamily
Production, Sylvia.s.chatman@hud.gov,
202–402–2994, Department of Housing
and Urban Development, 451 7th Street
DATES:
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Title of Information Collection: HUD
Multifamily Rental Project Closing
Documents.
OMB Approval Number: 2502–0598.
Type of Request: Extension of
currently approved collection and
implementation of two new forms.
Form Numbers: HUD–91710M, HUD–
91712M, HUD–92023M, HUD–92070M,
HUD–92223M, HUD–92412M, HUD–
92414M, HUD–92450M, HUD–92452A–
M, HUD–92452M, HUD–92455M, HUD–
92456M, HUD–91073M, HUD–92464M,
HUD–92476.1M, HUD–92476a-M,
HUD–92477M, HUD–92478M, HUD–
92479M, HUD–91725M, HUD–91725M–
CERT, HUD–91725M–INST, HUD–
92434M, HUD–92442M, HUD–92466M,
HUD–92554M, HUD–94000M, HUD–
94001M, HUD–93305M, HUD–92476M,
HUD–92420M, HUD–92408M, HUD–
91070M, HUD–91071M, HUD–92907,
HUD–92908
Description of the need for the
information and proposed use: The
Closing Documents were revised to:
provide clarification, improve
readability, ensure consistency across
the documents, correct previously
provided information, and to reflect the
2016 MAP Guide and the FHA
Multifamily Closing Guide. The
following is a discussion of noteworthy
changes to certain of the Closing
Documents, and an explanation of two
new Closing Documents.
Revisions to the Closing Documents
Regulatory Agreement, HUD–92466M
Given that the definitions of
‘‘Principal’’ and ‘‘Affiliate’’ no longer
appear at 24 CFR 200.215 following
changes to HUD’s Previous Participation
Rule, HUD proposes to add the prior
definition of Principal and Affiliate
from 24 CFR 200.215 as defined terms.
HUD proposes to reincorporate the
definition of ‘‘Residual Receipts’’ into
the form. The term means certain funds
which are restricted in their use by
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Program Obligations and applicable
business documents (e.g., HAP Contract,
Use Agreement) as may be more
specifically described in the Residual
Receipts Rider attached to the
Regulatory Agreement. This definition
has been reincorporated because a
number of HUD loan documents make
reference to Residual Receipts,
including some documents that refer to
the Regulatory Agreement as the source
of the definition. However, because the
source of Residual Receipts
requirements now ultimately lies in
programs other than FHA insurance
(e.g., in connection with certain Section
8 HAP contracts), the definition for
purposes of this document does not
describe all instances when Residual
Receipts would apply nor does it
precisely describe the method for
calculating Residual Receipts. Instead
the definition makes reference to such
other potential sources of Residual
Receipts requirements, as may be more
particularly described in an attached
Residual Receipts Rider.
Note, HUD–94001M
HUD proposes to add alternative
language for bifurcated notes for
consistency with the MAP Guide policy
allowing for such financing structures.
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Lender’s Certificate, HUD–92434M
HUD proposes to add a new
paragraph concerning No Material
Adverse Changes for consistency with
similar language in the Firm
Commitment templates issued through
Housing Notice 2016–06.
HUD proposes the attachment of a
new exhibit for the Reserve for
Replacement funding schedule
generated during the mortgage
insurance application stage and
attached to the Firm Commitment. The
schedule represents the amounts that
lenders must collect from borrowers
during insured loan servicing unless
other amounts are approved in writing
by HUD pursuant to Program
Obligations.
HUD proposes to add a restriction
formerly contained in the Instructions of
Borrower’s Counsel relating to lenders’
due diligence obligations concerning
certificates, permits, licenses, etc., that
is more appropriate for the Lender’s
Certificate.
HUD proposes to add a new section
for transactions involving cashcollateralized tax-exempt bonds
combined with 4% Low Income
Housing Tax Credits for consistency
with the MAP Guide and current HUD
practice.
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Request for Endorsement of Credit
Instrument, HUD–92455M
Certificate of Lender (HUD–92455M,
Section I)
HUD proposes to add a new
paragraph concerning No Material
Adverse Changes for consistency with
similar language in the Firm
Commitment templates issued through
Housing Notice 2016–06.
HUD proposes the attachment of a
new exhibit for Reserve for Replacement
funding schedule generated during the
mortgage insurance application stage
and attached to the Firm Commitment.
The schedule represents the amounts
that lenders must collect from borrowers
during insured loan servicing unless
other amounts are approved in writing
by HUD pursuant to Program
Obligations.
HUD proposes to add a restriction
formerly contained in the Instructions to
Opinion of Borrower’s Counsel relating
to lenders’ due diligence obligations
concerning certificates, permits,
licenses, etc., that is more appropriate
for the Lender’s Certificate.
HUD proposes to add a new section
for transactions involving cashcollateralized tax-exempt bonds
combined with 4% Low Income
Housing Tax Credits for consistency
with the MAP Guide and current HUD
practice.
HUD proposes to add a new
certification moved from the
Instructions to Opinion of Borrower’s
Counsel relating to lender consent for
any secondary financing.
Certificate of Borrower (HUD–92455M,
Section II)
Completion of construction
certification was enhanced to have the
Borrower certify to the level of
craftsmanship used to complete the
repairs.
The following certifications were
typically given separately from the
Certificate of Borrower and collected at
closing: Certification of Schedule of
Accounts Payable, Certification of Rent
Roll, Certification of Tenant Security
Deposits. These certifications have now
been incorporated into this document in
order to reduce the number of separate
documents collected at closing.
Opinion of Borrower’s Counsel, HUD–
91725M; Instructions, HUD–91725M–
INST; Exhibit A, HUD–91725M–CERT
HUD proposes separate paragraphs
related to bond, tax credit, secondary
financing, and Public Entity Agreement
(PEA) for clarification. The definition of
PEA now includes public secondary
financing; private secondary financing
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is a separate paragraph. There are
separate opinions concerning
supremacy of Primary/Supporting Loan
for each of these matters.
HUD proposes to add a new
paragraph under documents reviewed to
clarify (as stated in existing
Instructions) that all transaction
documents must be included.
HUD proposes to add a new
paragraph under opinions for required
state or deal specific opinions.
HUD proposes that Borrower’s
Counsel must review all organizational
documents within Borrower’s
organizational structure, as is legally
necessary, to establish the authority of
the signatory executing transaction
documents on behalf of Borrower and to
give the authorization opinion. Also,
HUD proposes to add a definition for
2nd tier entity foreign status certificate.
HUD proposes to add a disclosure
exception in confirmation (d) where
another attorney in Borrower’s
Counsel’s law firm has an interest in the
subject matters of the Opinion.
Previously the conflict/identity of
interest had to be disclosed but it was
unclear how to disclose. HUD proposes
to add language that counsel must
confirm compliance with applicable
ethics rules rather than issuing a
separate ethics opinion.
HUD proposes to include litigation
‘‘threatened in writing’’ as part of the
litigation disclosures.
HUD proposes to add a definition of
‘‘Primary Loan Documents’’ to include
HUD loan documents but not bond, tax
credit, secondary financing, and
supporting documents to ensure the
supremacy opinions regarding bond, tax
credit, and secondary financing are clear
that the Primary Loan Documents
control.
Lease Addendum, HUD–92070M
HUD has reformatted this document
for ease of reading along with adding
section headings. There is no longer a
separate instructions page as that caused
confusion in the past. HUD proposes to
revise the document to be a signed
agreement that is attached to the
underlying ground lease/lease, rather
than an unsigned addendum.
Additionally, recognition of HUD lease
requirements formerly in the recitals are
now proposed as part of the actual
agreement.
The proposed document has been
further revised to provide two different
options for the property interest being
leased for consistency with new MAP
Guide: Option 1, landlord owns the fee
interest in the land and tenant/borrower
owns the building and improvements
(this is the traditional structure found in
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the existing Lease Addendum); Option
2, the landlord owns the land, building
and improvement in fee simple, which
the tenant/borrower leases—this
structure is now permitted in the
revised MAP Guide in certain
circumstances.
HUD proposes to add minimum
requirements if a memo of lease is
recorded instead of the entire ground
lease, subject to state law requirements.
This should establish greater uniformity
with respect to different practices in
different HUD offices.
The document now memorializes an
existing but previously separate HUD
requirement that landlords provide an
estoppel certificate. HUD further
proposes a bracketed option for deletion
of the HUD option to purchase the fee
estate when authorized in writing by
HUD pursuant to Program Obligations,
consistent with the new MAP Guide.
Lastly, HUD proposes to add a clause
to prohibit merger of the fee and
leasehold estates without HUD consent,
for the protection of HUD. This is a
fairly typical ground lease provision.
Subordination Agreement—Public,
HUD–92420M
HUD proposes that this particular
form will only be used for public,
secondary lenders. HUD proposes a
separate subordination form for private,
subordinate lenders (see below).
HUD proposes to add brackets to
certain provisions to accommodate
secondary financing that comes in the
form of forgivable loans. HUD proposes
to add a sentence to memorialize Senior
Lender’s consent to the Subordinate
Loan pursuant to the MAP Guide.
HUD proposes to add certain required
language from the MAP Guide that was
previously omitted. HUD also proposes
to add language from the Surplus Cash
Note that is required by the MAP Guide.
HUD further proposes to include
required HUD language to be inserted
into the underlying promissory note so
that Surplus Cash Note does not also
need to be used. This should resolve
inconsistent guidance and practice with
respect to the form of note to use with
public secondary financing that is
secured.
HUD proposes to remove the
requirement that public, subordinate
lenders agree that their lien be
extinguished by deed in lieu of
foreclosure. This is a concession to state
and local housing finance agencies that
have raised numerous objections to this
provision over the last 2.5 years.
HUD proposes a change to the
prohibition against foreclosure of
subordinate mortgages. Secondary
financing lenders were previously
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prohibited from pursuing foreclosure in
the event of a default under their loan
documents. As an accommodation to
public secondary financing lenders,
Housing proposes to allow such public
lenders to pursue their foreclosure
remedies after a standstill period of 180
days. Note that foreclosure for a
monetary event of default will still not
be allowed while the loan is insured or
HUD-held, given that that repayment
obligations during this time are limited
to 75% of available Surplus Cash.
Consequently, public subordinate
lender foreclosure can only occur for
covenant events of default, such as for
violations of use and affordability
restrictions.
Subordination Agreement—Private,
HUD–92907M
This is an entirely new form. It
replaces the Secondary Financing Rider
found in the FHA Multifamily Program
Closing Guide that was previously used
for secured, private secondary
financing. This new form is largely
modeled after the Subordination
Agreement, HUD–92420M, which will
become the form used with public
secondary financing lenders.
Residual Receipts Note, HUD–92908M
Residual Receipts Note (Nonprofit
Borrowers) (HUD–91710M) & Residual
Receipts Note (Limited Dividend
Borrowers) (HUD–91712M) will be
merged into one form of note going
forward. For new transactions, Housing
doesn’t underwrite NP or LD owners
differently and so there is no longer an
FHA-driven basis for residual receipts
accounts. This was discussed in a
public FAQ dated 6/18/2015
(highlighting that borrower’s nonprofit
status no longer triggers the requirement
of residual receipts). However, the
existing forms will continue to be made
available for existing projects.
Supplementary Conditions to the
Construction Contract, HUD–92554M
HUD proposes to add language that
the document supersedes conflicting
provisions in the AIA Document A201
General Conditions of the Contract for
Construction, for consistency with the
FHA Multifamily Program Closing
Guide.
Survey Instructions and Surveyor’s
Report, HUD–91073M
HUD proposes revisions that are
necessary to permit the form to work
with new 2016 ALTA/NSPS standards
as discussed in an FAQ from earlier this
year. Additionally, the proposed
revision to page one of the document
isolates the instructions to make it
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41979
easier for surveyors to understand HUD
requirements and how to complete the
form.
Escrow for Deferred Repairs, HUD–
92476.1M
HUD proposes to remove the term
‘‘Non-critical’’ throughout, in order to
recognize the MAP Guide policy change
to allow certain accessibility corrections
to be paid from this escrow after initial/
final closing.
Supplement to Building Loan
Agreement, HUD–92441M–SUPP
HUD is eliminating this form from the
Collection of Information and use in the
Multifamily programs, as borrower
entities can no longer serve as their own
general contractors and remain in
compliance with HUD’s regulatory
single asset entity and administrative
requirements.
Respondents (i.e. affected public):
Lenders, Borrowers, Housing Finance
Agencies, Government Agencies that
support affordable housing, Multifamily
Housing Developers, Lender’s Council,
Borrower’s Council, Contractors,
Architects, Secondary Financing
Lenders.
Estimated Number of Respondents:
17,468.
Estimated Number of Responses:
17,468.
Frequency of Response: Once per
annum.
Average Hours per Response: .70
hours.
Total Estimated Burden: 12,359.50
hours.
B. Solicitation of Public Comment
This notice is soliciting comments
from members of the public and affected
parties concerning the collection of
information described in Section A on
the following:
(1) Whether the proposed collection
of information is necessary for the
proper performance of the functions of
the agency, including whether the
information will have practical utility;
(2) The accuracy of the agency’s
estimate of the burden of the proposed
collection of information;
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on those
who are to respond; including through
the use of appropriate automated
collection techniques or other forms of
information technology, e.g., permitting
electronic submission of responses.
HUD encourages interested parties to
submit comments in response to these
questions. Please note that HUD will not
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consider any redline/strikeout
comparison documents submitted by
commenters, as it is far too inefficient
for the Department to consolidate and
consider redline/strikeout versions of
each of the documents from numerous
interested parties, based on HUD’s past
experience in seeking public comments
on this information collection. HUD will
only consider proposed changes to the
documents listed under Section A that
are submitted in narrative and/or
bulleted form, accompanied by a
detailed explanation and rationale for
each requested change. However,
commenters may include in their
detailed explanation and rationale the
relevant excerpt(s) from the document(s)
with redlines/strikeouts.
Authority: Section 3507 of the Paperwork
Reduction Act of 1995, 44 U.S.C. Chapter 35.
Dated: August 29, 2017.
Dana T. Wade,
General Deputy Assistant Secretary for
Housing.
[FR Doc. 2017–18742 Filed 9–1–17; 8:45 am]
BILLING CODE 4210–67–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–R2–ES–2017–N109;
FXES11140200000–178–FF02ENEH00]
Incidental Take Permit Applications
Received To Participate in the
American Burying Beetle Amended Oil
and Gas Industry Conservation Plan in
Oklahoma
Fish and Wildlife Service,
Interior.
ACTION: Notice of availability; request
for public comments.
AGENCY:
Under the Endangered
Species Act, as amended (ESA), we, the
U.S. Fish and Wildlife Service, invite
the public to comment on federally
listed American burying beetle
incidental take permit applications. The
applicants anticipate American burying
beetle take as a result of impacts to
habitat the species uses for breeding,
feeding, and sheltering in Oklahoma.
The take would be incidental to the
applicants’ activities associated with oil
and gas well field and pipeline
infrastructure (gathering, transmission,
and distribution), including geophysical
exploration (seismic), construction,
maintenance, operation, repair,
decommissioning, and reclamation. If
approved, the permits would be issued
under the approved American Burying
Beetle Amended Oil and Gas Industry
Conservation Plan (ICP) Endangered
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SUMMARY:
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Species Act Section 10(a)(1)(B) Permit
Issuance in Oklahoma.
DATES: To ensure consideration, written
comments must be received on or before
October 5, 2017.
ADDRESSES: You may obtain copies of
all documents and submit comments on
the applicants’ incidental take permit
(ITP) applications by one of the
following methods. Please refer to the
proposed permit number when
requesting documents or submitting
comments.
Æ U.S. Mail: U.S. Fish and Wildlife
Service, Division of Endangered
Species—HCP Permits, P.O. Box 1306,
Room 6034, Albuquerque, NM 87103.
Æ Electronically: fw2_hcp_permits@
fws.gov.
FOR FURTHER INFORMATION CONTACT:
Marty Tuegel, Branch Chief, by U.S.
mail at U.S. Fish and Wildlife Service,
Environmental Review Division, P.O.
Box 1306, Room 6034, Albuquerque,
NM 87103; or by telephone at 505–248–
6651.
SUPPLEMENTARY INFORMATION:
Introduction
Under the Endangered Species Act, as
amended (16 U.S.C. 1531 et seq.; ESA),
we, the U.S. Fish and Wildlife Service,
invite the public to comment on
incidental take permit (ITP) applications
to take the federally listed American
burying beetle (Nicrophorus
americanus) during oil and gas well
field infrastructure geophysical
exploration (seismic) and construction,
maintenance, operation, repair, and
decommissioning, as well as oil and gas
gathering, transmission, and
distribution pipeline infrastructure
construction, maintenance, operation,
repair, decommissioning, and
reclamation in Oklahoma.
If approved, the permits would be
issued to the applicants under the
American Burying Beetle Amended Oil
and Gas Industry Conservation Plan
(ICP) Endangered Species Act Section
10(a)(1)(B) Permit Issuance in
Oklahoma. The original ICP was
approved on May 21, 2014, and the ‘‘no
significant impact’’ finding notice was
published in the Federal Register on
July 25, 2014 (79 FR 43504). The draft
amended ICP was made available for
comment on March 8, 2016 (81 FR
12113), and approved on April 13, 2016.
The ICP and the associated
environmental assessment/finding of no
significant impact are available on our
Web site at https://www.fws.gov/
southwest/es/oklahoma/ABBICP.
However, we are no longer taking
comments on these finalized, approved
documents.
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Applications Available for Review and
Comment
We invite local, State, Tribal, and
Federal agencies, and the public to
comment on the following applications
under the ICP, for incidentally taking
the federally listed American burying
beetle. Please refer to the appropriate
permit number (e.g., TE–123456) when
requesting application documents and
when submitting comments. Documents
and other information the applicants
have submitted are available for review,
subject to Privacy Act (5 U.S.C. 552a)
and Freedom of Information Act (5
U.S.C. 552) requirements.
Permit TE41500C
Applicant: Plains All American
Pipeline, L.P., Houston, TX.
Applicant requests a permit for oil
and gas upstream and midstream
production, including oil and gas well
field infrastructure geophysical
exploration (seismic) and construction,
maintenance, operation, repair, and
decommissioning, as well as oil and gas
gathering, transmission, and
distribution pipeline infrastructure
construction, maintenance, operation,
repair, decommissioning, and
reclamation in Oklahoma.
Permit TE42582C
Applicant: Reach Energy Limited,
Oklahoma City, OK.
Applicant requests a permit for oil
and gas upstream and midstream
production, including oil and gas well
field infrastructure geophysical
exploration (seismic) and construction,
maintenance, operation, repair, and
decommissioning, as well as oil and gas
gathering, transmission, and
distribution pipeline infrastructure
construction, maintenance, operation,
repair, decommissioning, and
reclamation in Oklahoma.
Public Availability of Comments
Written comments we receive become
part of the public record associated with
this action. Before including your
address, phone number, email address,
or other personal identifying
information in your comment, you
should be aware that your entire
comment—including your personal
identifying information—may be made
publicly available at any time. While
you can request in your comment that
we withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so. We will not consider anonymous
comments. All submissions from
organizations or businesses, and from
individuals identifying themselves as
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[Federal Register Volume 82, Number 170 (Tuesday, September 5, 2017)]
[Notices]
[Pages 41977-41980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18742]
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6001-N-28]
60-Day Notice of Proposed Information Collection: HUD Multifamily
Rental Project Closing Documents
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: HUD is seeking approval from the Office of Management and
Budget (OMB) for the information collection described below. In
accordance with the Paperwork Reduction Act, HUD is requesting comments
from all interested parties on the proposed collection of information.
The purpose of this notice is to allow for 60 days of public comment.
DATES: Comments Due Date: November 6, 2017.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposal. Comments should refer to the proposal by name and/or OMB
Control Number and should be sent to: Colette Pollard, Reports
Management Officer, QDAM, Department of Housing and Urban Development,
451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone
202-402-3400 (this is not a toll-free number) or email at
Colette.Pollard@hud.gov for a copy of the proposed forms or other
available information. Persons with hearing or speech impairments may
access this number through TTY by calling the toll-free Federal Relay
Service at (800) 877-8339.
FOR FURTHER INFORMATION CONTACT: Sylvia S. Chatman, Housing Program
Manager, Office of Multifamily Production, Sylvia.s.chatman@hud.gov,
202-402-2994, Department of Housing and Urban Development, 451 7th
Street SW., Washington, DC 20410. This is not a toll-free number.
Persons with hearing or speech impairments may access this number
through TTY by calling the toll-free Federal Relay Service at (800)
877-8339.
Copies of available documents to be submitted to OMB may be found
at: https://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh/mfhclosingdocuments.
SUPPLEMENTARY INFORMATION: This notice informs the public that HUD is
seeking approval from OMB for the information collection described in
Section A.
A. Overview of Information Collection
Title of Information Collection: HUD Multifamily Rental Project
Closing Documents.
OMB Approval Number: 2502-0598.
Type of Request: Extension of currently approved collection and
implementation of two new forms.
Form Numbers: HUD-91710M, HUD-91712M, HUD-92023M, HUD-92070M, HUD-
92223M, HUD-92412M, HUD-92414M, HUD-92450M, HUD-92452A-M, HUD-92452M,
HUD-92455M, HUD-92456M, HUD-91073M, HUD-92464M, HUD-92476.1M, HUD-
92476a-M, HUD-92477M, HUD-92478M, HUD-92479M, HUD-91725M, HUD-91725M-
CERT, HUD-91725M-INST, HUD-92434M, HUD-92442M, HUD-92466M, HUD-92554M,
HUD-94000M, HUD-94001M, HUD-93305M, HUD-92476M, HUD-92420M, HUD-92408M,
HUD-91070M, HUD-91071M, HUD-92907, HUD-92908
Description of the need for the information and proposed use: The
Closing Documents were revised to: provide clarification, improve
readability, ensure consistency across the documents, correct
previously provided information, and to reflect the 2016 MAP Guide and
the FHA Multifamily Closing Guide. The following is a discussion of
noteworthy changes to certain of the Closing Documents, and an
explanation of two new Closing Documents.
Revisions to the Closing Documents
Regulatory Agreement, HUD-92466M
Given that the definitions of ``Principal'' and ``Affiliate'' no
longer appear at 24 CFR 200.215 following changes to HUD's Previous
Participation Rule, HUD proposes to add the prior definition of
Principal and Affiliate from 24 CFR 200.215 as defined terms.
HUD proposes to reincorporate the definition of ``Residual
Receipts'' into the form. The term means certain funds which are
restricted in their use by
[[Page 41978]]
Program Obligations and applicable business documents (e.g., HAP
Contract, Use Agreement) as may be more specifically described in the
Residual Receipts Rider attached to the Regulatory Agreement. This
definition has been reincorporated because a number of HUD loan
documents make reference to Residual Receipts, including some documents
that refer to the Regulatory Agreement as the source of the definition.
However, because the source of Residual Receipts requirements now
ultimately lies in programs other than FHA insurance (e.g., in
connection with certain Section 8 HAP contracts), the definition for
purposes of this document does not describe all instances when Residual
Receipts would apply nor does it precisely describe the method for
calculating Residual Receipts. Instead the definition makes reference
to such other potential sources of Residual Receipts requirements, as
may be more particularly described in an attached Residual Receipts
Rider.
Note, HUD-94001M
HUD proposes to add alternative language for bifurcated notes for
consistency with the MAP Guide policy allowing for such financing
structures.
Lender's Certificate, HUD-92434M
HUD proposes to add a new paragraph concerning No Material Adverse
Changes for consistency with similar language in the Firm Commitment
templates issued through Housing Notice 2016-06.
HUD proposes the attachment of a new exhibit for the Reserve for
Replacement funding schedule generated during the mortgage insurance
application stage and attached to the Firm Commitment. The schedule
represents the amounts that lenders must collect from borrowers during
insured loan servicing unless other amounts are approved in writing by
HUD pursuant to Program Obligations.
HUD proposes to add a restriction formerly contained in the
Instructions of Borrower's Counsel relating to lenders' due diligence
obligations concerning certificates, permits, licenses, etc., that is
more appropriate for the Lender's Certificate.
HUD proposes to add a new section for transactions involving cash-
collateralized tax-exempt bonds combined with 4% Low Income Housing Tax
Credits for consistency with the MAP Guide and current HUD practice.
Request for Endorsement of Credit Instrument, HUD-92455M
Certificate of Lender (HUD-92455M, Section I)
HUD proposes to add a new paragraph concerning No Material Adverse
Changes for consistency with similar language in the Firm Commitment
templates issued through Housing Notice 2016-06.
HUD proposes the attachment of a new exhibit for Reserve for
Replacement funding schedule generated during the mortgage insurance
application stage and attached to the Firm Commitment. The schedule
represents the amounts that lenders must collect from borrowers during
insured loan servicing unless other amounts are approved in writing by
HUD pursuant to Program Obligations.
HUD proposes to add a restriction formerly contained in the
Instructions to Opinion of Borrower's Counsel relating to lenders' due
diligence obligations concerning certificates, permits, licenses, etc.,
that is more appropriate for the Lender's Certificate.
HUD proposes to add a new section for transactions involving cash-
collateralized tax-exempt bonds combined with 4% Low Income Housing Tax
Credits for consistency with the MAP Guide and current HUD practice.
HUD proposes to add a new certification moved from the Instructions
to Opinion of Borrower's Counsel relating to lender consent for any
secondary financing.
Certificate of Borrower (HUD-92455M, Section II)
Completion of construction certification was enhanced to have the
Borrower certify to the level of craftsmanship used to complete the
repairs.
The following certifications were typically given separately from
the Certificate of Borrower and collected at closing: Certification of
Schedule of Accounts Payable, Certification of Rent Roll, Certification
of Tenant Security Deposits. These certifications have now been
incorporated into this document in order to reduce the number of
separate documents collected at closing.
Opinion of Borrower's Counsel, HUD-91725M; Instructions, HUD-91725M-
INST; Exhibit A, HUD-91725M-CERT
HUD proposes separate paragraphs related to bond, tax credit,
secondary financing, and Public Entity Agreement (PEA) for
clarification. The definition of PEA now includes public secondary
financing; private secondary financing is a separate paragraph. There
are separate opinions concerning supremacy of Primary/Supporting Loan
for each of these matters.
HUD proposes to add a new paragraph under documents reviewed to
clarify (as stated in existing Instructions) that all transaction
documents must be included.
HUD proposes to add a new paragraph under opinions for required
state or deal specific opinions.
HUD proposes that Borrower's Counsel must review all organizational
documents within Borrower's organizational structure, as is legally
necessary, to establish the authority of the signatory executing
transaction documents on behalf of Borrower and to give the
authorization opinion. Also, HUD proposes to add a definition for 2nd
tier entity foreign status certificate.
HUD proposes to add a disclosure exception in confirmation (d)
where another attorney in Borrower's Counsel's law firm has an interest
in the subject matters of the Opinion. Previously the conflict/identity
of interest had to be disclosed but it was unclear how to disclose. HUD
proposes to add language that counsel must confirm compliance with
applicable ethics rules rather than issuing a separate ethics opinion.
HUD proposes to include litigation ``threatened in writing'' as
part of the litigation disclosures.
HUD proposes to add a definition of ``Primary Loan Documents'' to
include HUD loan documents but not bond, tax credit, secondary
financing, and supporting documents to ensure the supremacy opinions
regarding bond, tax credit, and secondary financing are clear that the
Primary Loan Documents control.
Lease Addendum, HUD-92070M
HUD has reformatted this document for ease of reading along with
adding section headings. There is no longer a separate instructions
page as that caused confusion in the past. HUD proposes to revise the
document to be a signed agreement that is attached to the underlying
ground lease/lease, rather than an unsigned addendum. Additionally,
recognition of HUD lease requirements formerly in the recitals are now
proposed as part of the actual agreement.
The proposed document has been further revised to provide two
different options for the property interest being leased for
consistency with new MAP Guide: Option 1, landlord owns the fee
interest in the land and tenant/borrower owns the building and
improvements (this is the traditional structure found in
[[Page 41979]]
the existing Lease Addendum); Option 2, the landlord owns the land,
building and improvement in fee simple, which the tenant/borrower
leases--this structure is now permitted in the revised MAP Guide in
certain circumstances.
HUD proposes to add minimum requirements if a memo of lease is
recorded instead of the entire ground lease, subject to state law
requirements. This should establish greater uniformity with respect to
different practices in different HUD offices.
The document now memorializes an existing but previously separate
HUD requirement that landlords provide an estoppel certificate. HUD
further proposes a bracketed option for deletion of the HUD option to
purchase the fee estate when authorized in writing by HUD pursuant to
Program Obligations, consistent with the new MAP Guide.
Lastly, HUD proposes to add a clause to prohibit merger of the fee
and leasehold estates without HUD consent, for the protection of HUD.
This is a fairly typical ground lease provision.
Subordination Agreement--Public, HUD-92420M
HUD proposes that this particular form will only be used for
public, secondary lenders. HUD proposes a separate subordination form
for private, subordinate lenders (see below).
HUD proposes to add brackets to certain provisions to accommodate
secondary financing that comes in the form of forgivable loans. HUD
proposes to add a sentence to memorialize Senior Lender's consent to
the Subordinate Loan pursuant to the MAP Guide.
HUD proposes to add certain required language from the MAP Guide
that was previously omitted. HUD also proposes to add language from the
Surplus Cash Note that is required by the MAP Guide. HUD further
proposes to include required HUD language to be inserted into the
underlying promissory note so that Surplus Cash Note does not also need
to be used. This should resolve inconsistent guidance and practice with
respect to the form of note to use with public secondary financing that
is secured.
HUD proposes to remove the requirement that public, subordinate
lenders agree that their lien be extinguished by deed in lieu of
foreclosure. This is a concession to state and local housing finance
agencies that have raised numerous objections to this provision over
the last 2.5 years.
HUD proposes a change to the prohibition against foreclosure of
subordinate mortgages. Secondary financing lenders were previously
prohibited from pursuing foreclosure in the event of a default under
their loan documents. As an accommodation to public secondary financing
lenders, Housing proposes to allow such public lenders to pursue their
foreclosure remedies after a standstill period of 180 days. Note that
foreclosure for a monetary event of default will still not be allowed
while the loan is insured or HUD-held, given that that repayment
obligations during this time are limited to 75% of available Surplus
Cash. Consequently, public subordinate lender foreclosure can only
occur for covenant events of default, such as for violations of use and
affordability restrictions.
Subordination Agreement--Private, HUD-92907M
This is an entirely new form. It replaces the Secondary Financing
Rider found in the FHA Multifamily Program Closing Guide that was
previously used for secured, private secondary financing. This new form
is largely modeled after the Subordination Agreement, HUD-92420M, which
will become the form used with public secondary financing lenders.
Residual Receipts Note, HUD-92908M
Residual Receipts Note (Nonprofit Borrowers) (HUD-91710M) &
Residual Receipts Note (Limited Dividend Borrowers) (HUD-91712M) will
be merged into one form of note going forward. For new transactions,
Housing doesn't underwrite NP or LD owners differently and so there is
no longer an FHA-driven basis for residual receipts accounts. This was
discussed in a public FAQ dated 6/18/2015 (highlighting that borrower's
nonprofit status no longer triggers the requirement of residual
receipts). However, the existing forms will continue to be made
available for existing projects.
Supplementary Conditions to the Construction Contract, HUD-92554M
HUD proposes to add language that the document supersedes
conflicting provisions in the AIA Document A201 General Conditions of
the Contract for Construction, for consistency with the FHA Multifamily
Program Closing Guide.
Survey Instructions and Surveyor's Report, HUD-91073M
HUD proposes revisions that are necessary to permit the form to
work with new 2016 ALTA/NSPS standards as discussed in an FAQ from
earlier this year. Additionally, the proposed revision to page one of
the document isolates the instructions to make it easier for surveyors
to understand HUD requirements and how to complete the form.
Escrow for Deferred Repairs, HUD-92476.1M
HUD proposes to remove the term ``Non-critical'' throughout, in
order to recognize the MAP Guide policy change to allow certain
accessibility corrections to be paid from this escrow after initial/
final closing.
Supplement to Building Loan Agreement, HUD-92441M-SUPP
HUD is eliminating this form from the Collection of Information and
use in the Multifamily programs, as borrower entities can no longer
serve as their own general contractors and remain in compliance with
HUD's regulatory single asset entity and administrative requirements.
Respondents (i.e. affected public): Lenders, Borrowers, Housing
Finance Agencies, Government Agencies that support affordable housing,
Multifamily Housing Developers, Lender's Council, Borrower's Council,
Contractors, Architects, Secondary Financing Lenders.
Estimated Number of Respondents: 17,468.
Estimated Number of Responses: 17,468.
Frequency of Response: Once per annum.
Average Hours per Response: .70 hours.
Total Estimated Burden: 12,359.50 hours.
B. Solicitation of Public Comment
This notice is soliciting comments from members of the public and
affected parties concerning the collection of information described in
Section A on the following:
(1) Whether the proposed collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the
proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond; including through the use of appropriate
automated collection techniques or other forms of information
technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comments in response to
these questions. Please note that HUD will not
[[Page 41980]]
consider any redline/strikeout comparison documents submitted by
commenters, as it is far too inefficient for the Department to
consolidate and consider redline/strikeout versions of each of the
documents from numerous interested parties, based on HUD's past
experience in seeking public comments on this information collection.
HUD will only consider proposed changes to the documents listed under
Section A that are submitted in narrative and/or bulleted form,
accompanied by a detailed explanation and rationale for each requested
change. However, commenters may include in their detailed explanation
and rationale the relevant excerpt(s) from the document(s) with
redlines/strikeouts.
Authority: Section 3507 of the Paperwork Reduction Act of 1995,
44 U.S.C. Chapter 35.
Dated: August 29, 2017.
Dana T. Wade,
General Deputy Assistant Secretary for Housing.
[FR Doc. 2017-18742 Filed 9-1-17; 8:45 am]
BILLING CODE 4210-67-P
