30-Day Notice of Proposed Information Collection: Moving to Work Amendment to Consolidated Annual Contributions Contract (ACC), 60405-60409 [2019-24473]

Agencies

• DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Notices]
[Pages 60405-60409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24473]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

[Docket No. FR-7011-N-49]


30-Day Notice of Proposed Information Collection: Moving to Work 
Amendment to Consolidated Annual Contributions Contract (ACC)

AGENCY: Office of the Chief Information Officer, HUD.

ACTION: Notice.

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SUMMARY: HUD has submitted the information collection described below 
to the Office of Management and Budget (OMB) for review and approval, 
in accordance with the Paperwork Reduction Act. HUD has revised the 
Moving to Work Amendment to the Consolidated Annual Contributions 
Contract (ACC) (``MTW ACC Amendment'') in response to public comments 
received during the public comment period provided for by the 60-Day 
Notice of Proposed Information Collection. These revisions are more 
thoroughly described below. This publication is to provide notice to 
PHAs of the revisions and to give PHAs the opportunity to comment on 
such revisions. The purpose of this notice is to allow for an 
additional 30 days of public comment.

DATES: Comments Due Date: December 9, 2019.

ADDRESSES: Interested persons are invited to submit comments regarding 
this proposal. Comments should refer to

[[Page 60406]]

the proposal by name and/or OMB Control Number and should be sent to: 
HUD Desk Officer, Officer of Management and Budget, New Executive 
Office Building, Washington, DC 20503; fax: 202-395-5806; email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Colette Pollard, Reports Management 
Officer, QDAM, Department of Housing and Urban Development, 451 7th 
Street SW, Washington, DC 20410; email Colette Pollard at 
[email protected] or telephone 202-402-3400. Persons with hearing 
or speech impairments may access this number through TTY by calling the 
toll-free Federal Relay Service at (800) 877-8339. This is not a toll-
free number. Copies of available documents submitted to OMB may be 
obtained from Ms. Pollard.

SUPPLEMENTARY INFORMATION: This notice informs the public that HUD has 
submitted to OMB a request for approval of the information collection 
described in Section A. The Federal Register notice that solicited 
public comment on the information collection for a period of 60 days 
was published on December 27, 2018 at 83 FR 66738.

A. Background

    In order to implement the expanded MTW program under division L, 
title II of the Consolidated Appropriations Act, 2016 (Pub. L.114-113, 
December 18, 2015), HUD issued the first Operations Notice of the 
Expansion of the Moving to Work Demonstration Program Solicitation of 
Comment (82 FR 8056, January 23, 2017) (Operations Notice), and 
solicited public comment. This notice established requirements for the 
implementation and continued operation of the expansion of the MTW 
demonstration program pursuant to the 2016 MTW Expansion Statute and 
certain pre-approved waivers to establish program flexibility for 
participants. These waivers will be available to MTW PHAs when the 
revised MTW ACC Amendment is executed. The Operations Notice also 
provided that the 100 PHAs would be selected in cohorts, with 
applications for each cohort to be sought via a Selection Notice.
    This initial Operations Notice was followed by subsequent Federal 
Register notices. On May 4, 2017, HUD published the Operations Notice 
for the Expansion of the Moving to Work Demonstration Program 
Solicitation of Comment; Waiver Revision and Reopening of Comment 
Period.'' On October 5, 2018, HUD published a further Operations Notice 
(83 FR 50387)(a correction and extension of the comment period was 
published on October 11, 2018 (83 FR 51474)). This notice made changes 
as a result of the prior public comments, and again solicited public 
comments. HUD plans to issue the final MTW Operations Notice 
separately.
    On December 27, 2018, HUD issued for public comment the 60-day 
notice for the Moving to Work Amendment to the Consolidated Annual 
Contributions Contract (the ``MTW ACC Amendment'') under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. (83 FR 66738). The MTW ACC 
Amendment has been revised in response to public comments received 
under the 60-day Notice. The formal title has also been changed to the 
``Moving to Work Amendment to the Annual Contributions Contract(s).'' 
The revised MTW ACC Amendment will govern the 100 new PHAs' 
participation in the MTW demonstration pursuant to the 2016 
legislation. It will allow the PHAs to exercise the flexibilities 
provided by the MTW Operations Notice and their respective Selection 
Notice and require compliance with the terms and conditions of each 
Notice respectively. This notice follows the 60-day notice.

B. Overview of Information Collection

    Title of Information Collection: Moving to Work Amendment to 
Consolidated Annual Contributions Contract.
    OMB Approval Number: Pending OMB approval.
    Type of Request: New collection.
    Form Number: HUD-50166.
    Description of the need for the information and proposed use: The 
proposed Moving to Work (MTW) Amendment to the Annual Contributions 
Contract(s), signed by HUD and the selected Public Housing Authority 
(PHA), is necessary for HUD to implement the expansion of the Moving to 
Work program enacted by Congress in the Consolidated Appropriations 
Act, 2016 (Pub. L. 114-113, approved December 18, 2015) (2016 
Appropriation). It establishes the basic terms and conditions that will 
apply to 100 new PHAs participating in the MTW demonstration pursuant 
to the 2016 Appropriation. Specifically, the MTW ACC Amendment amends 
any ACCs for the public housing or housing choice voucher programs in 
effect between the PHA and HUD to establish the PHA's designation as an 
MTW agency and to operate in accordance with the requirements of the 
MTW demonstration program, as amended by Public Law 114-113. The MTW 
ACC Amendment establishes the terms of participation in MTW, including 
the requirement that the PHA follow the MTW Operations Notice and its 
respective Selection Notice. The PHAs remain subject to the applicable 
ACCs when the provisions are not otherwise waived by the Operations 
Notice or the applicable MTW Selection Notice. Additionally, the MTW 
ACC Amendment outlines PHA transition out of the demonstration and HUD 
termination rights upon PHA default. A copy of the proposed MTW ACC 
Amendment is published at the end of this notice. Please note that the 
30-Day Notice of Proposed Information Collection for the Public Housing 
Annual Contributions Contract for Capital and Operating Grant Funds 
(Public Housing ACC) is published elsewhere in this issue of the 
Federal Register.
    This 30-Day Notice of Proposed Information Collection provides PHAs 
with notice of revisions to the proposed MTW ACC Amendment published on 
December 27, 2018 in the 60-Day Notice of Proposed Information 
Collection at 83 FR 66738. The MTW ACC Amendment published in this 
notice revises several provisions published in the 60-Day Notice in 
response to public comments received. These revisions are summarized in 
Section E of this notice. Additionally, HUD has summarized public 
comments and provided responses to those comments in Section F of this 
notice.
    Respondents: Public housing agencies.
    Total Estimated Burdens: The burden costs associated with this 
collection are as follows:

 
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                                     Number of                            Responses  per    Burden hour    Annual burden    Hourly cost
     Information collection         respondents   Frequency  of response       annum       per response        hours       per response        Cost
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HUD-50166 MTW ACC Amendment.....             100  1 each................               1            1.00             100          $52.88          $5,288
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[[Page 60407]]

    The burden costs shown represent burden associated with a one-time 
execution of the MTW ACC Amendment for each of 100 PHAs to be 
designated as MTW pursuant to the FY2016 Appropriations Statute. 
Previously, in the 60-Day PRA Notice published on December 27, 2018, 
HUD under-estimated the estimated burden hours associated with the 
execution of the MTW ACC Amendment. The burden hours did not account 
for the review time associated with the one-time execution of the MTW 
ACC Amendment.

C. 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.

D. Authority

    Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 
Chapter 35.

E. Overview of Significant Changes Made to the MTW ACC Amendment

    The following represents the most notable changes to the MTW ACC 
Amendment. However, other changes have also been made which may not be 
identified below because they are editorial or non-material and minor 
changes. The MTW ACC Amendment should be reviewed in its entirety to 
determine the exact nature and scope of these revisions. A copy of the 
revised MTW ACC Amendment is published at the end of this notice.
     HUD changed the title of the document from the Moving to 
Work Amendment to the Consolidated Annual Contributions Contract(s) 
(MTW CACC Amendment) to the Moving to Work Annual Contributions 
Contract(s) (MTW ACC Amendment) in conjunction with changes made to the 
Public Housing ACC. The document continues to amend any ACC in effect 
between the PHA and HUD for the public housing or housing choice 
voucher programs (including the ``Consolidated Annual Contributions 
Contract for the Rental Certificate and Rental Voucher programs'').
     HUD amended Section 4 of the amendment and extended the 
term of this amendment from 12 to 20 years, and to clarify that the 
effective date of the amendment is at the start of the first full PHA 
fiscal year after execution of the amendment by the PHA and HUD.
     HUD deleted Section 10 of the amendment as a result of the 
changes to Section 4, which rendered it superfluous.
     HUD amended Section 5(C) of the Amendment to clarify that 
exemptions from statutory and regulatory requirements pursuant to the 
MTW Operations Notice extend to the implementing subregulatory 
requirements in response to public comments.
     HUD amended Section 6 of the Amendment in response to 
public comments to clarify that a transition plan is not needed a year 
prior to termination of the MTW ACC Amendment if the PHA's 
participation in the MTW demonstration program is extended in advance 
of the final year of the term of the MTW ACC Amendment. HUD also made 
changes to this section to clarify submission and approval process for 
the transition plan and to clarify that a subsequent amendment to the 
ACC may be needed to allow continuation of MTW authority necessary to 
continue some activities under the transition plan after the term of 
the amendment.
     HUD amended Section 7(B) of the Amendment in response to 
public comments to remove remedies related to suspending, reducing, or 
offsetting funding, which are covered by the ACC.
     HUD amended Section 8 of the Amendment for clarity.
     HUD added a severability clause in Section 9 to ensure 
that the Amendment remains in effect allowing for the continued 
administration of the MTW demonstration program in the event of 
litigation affecting one of the Amendment provisions.

F. Summary of MTW ACC Amendment Comments and HUD Responses

    Comment: Commenters felt that the Standard MTW Agreement was 
necessary to ensure that new MTW agencies would be part of the same 
program as the existing 39 MTW PHAs, consistent with the intent of 
Congress in expanding the MTW demonstration program.
    HUD Response: A fundamental goal of the MTW expansion is to provide 
MTW expansion PHAs with many of the same flexibilities that the 
existing agencies have. For that reason, the framework of the MTW 
expansion was drafted with the intent to provide generally the same 
flexibilities of the existing MTW agencies (after consideration of the 
legal authority provided by the MTW statute and continued necessity 
given changes in law and regulations) in a framework that is simplified 
for both HUD and MTW PHAs and ensures resident protections. Through the 
MTW Operations Notice, HUD is creating a simpler and streamlined 
structure for new MTW PHAs and for HUD. The MTW Operations Notice makes 
it clear what statutory or regulatory provisions the authorization is 
waiving and what activities can be implemented without further HUD 
approval. This is important for scalability, monitoring, and allowing 
the same flexibilities with simplified administrative oversight. 
Further, in the event a 1937 Act statutory or regulatory provision is 
not included within the MTW Operations Notice, an MTW expansion agency 
may use its MTW authority to request to waive the statute or 
regulation, as long as it does not conflict with a cohort study or is 
not one of the statutory provisions restricted by Congress.
    Additionally, operating the demonstration program via the MTW 
Operations Notice, effectuated for each agency via execution of the MTW 
ACC Amendment, rather than by using individual MTW Agreements allows 
for consistency of interpretation and administration of provisions such 
as the MTW funding formula (rather than having various individual 
formulae), avoiding the potential for misinterpretations and 
inconsistent treatment among PHAs. The MTW ACC amendment is necessary 
to allow the agency to exercise the flexibilities provided by the MTW 
Operations Notice and to require compliance with the terms thereof. 
This programmatic structure is essential for scalability of the MTW 
demonstration program; administration of over 100 individual MTW 
Agreements is not feasible for HUD.
    Comment: Commenters expressed concerns, that unlike an MTW 
agreement, the MTW Operations Notice implemented through the MTW ACC 
Amendment could be unilaterally changed by HUD. Commenters also stated 
that substantive changes to the Notice affecting the terms of an MTW 
agency's participation in the

[[Page 60408]]

demonstration should be subject to notice and comment procedures.
    HUD Response: To improve scalability and allow for ease of adding 
additional flexibilities to the demonstration, PIH looked to the Rental 
Assistance Demonstration (RAD) program and its implementation through 
HUD notices. Using RAD's model, HUD will be able to revise the MTW 
Operations Notice as it learns from and develops the demonstration, 
whereas it is much more difficult to amend over 100 contracts. The MTW 
Operations Notice states that any significant updates to the Operations 
Notice by HUD will be preceded by a public comment period.
    Comment: Commenters were concerned about HUD's ability to 
discontinue an agency's activity and felt that the reasons for which 
HUD would do this were unclear.
    HUD Response: Language about discontinuation of activities has been 
removed from the MTW ACC Amendment in response to public comments. The 
final MTW Operations Notice will provide additional information on the 
factors HUD will evaluate when considering requiring a PHA to 
discontinue an activity.
    Comment: Commenters expressed concern that the language making the 
PHA subject to all HUD requirements other than those statutory and 
regulatory provisions waived pursuant to the MTW Operations Notice 
would void all MTW flexibilities because of the potential for 
conflicting requirements in subregulatory guidance.
    HUD Response: HUD has added language to clarify that exemptions 
from statutory and regulatory requirements pursuant to the MTW 
Operations Notice extend to subregulatory guidance to the extent that 
that subregulatory guidance implements statutory and regulatory 
requirements waived by the MTW Operations Notice in response to these 
concerns.
    Comment: Commenters expressed concern over the mechanisms 
surrounding the end of the 12-year term of participation and an MTW 
PHA's ability to retain waivers to continue successful activities.
    HUD Response: HUD has amended Section 6 of the ACC to acknowledge 
that, in the event of an ACC amendment extension, the transition plan 
would not be due at the end of the initial term but at the end of the 
extension(s). HUD has also clarified the process by which an agency can 
request continued use of certain MTW flexibilities if/when its term of 
participation expires. HUD also extended the term of participation to 
20 years in Section 4.
    Comment: Some commenters felt that the termination and default 
remedies authorized to HUD were excessive and redundant of remedies 
provided by the ACC.
    HUD Response: HUD has removed remedies related to suspending, 
reducing, or offsetting funding, in Section 7, as this language is 
covered in the ACC(s).
    Comment: Some commenters stated that language in the MTW ACC 
Amendment appeared to reflect an attempt by HUD to protect itself from 
future lawsuits similar to ones it has lost with existing MTW agencies.
    HUD Response: As HUD has stated in the responses to comments on the 
Public Housing ACC published elsewhere in this issue, these changes 
were not proposed in response to litigation, but HUD is aware of 
litigation surrounding the ACC. HUD makes clear in the current version 
of the ACC that HUD has never contemplated money damages for action or 
inaction by HUD with respect to the ACC. This is also true of the MTW 
ACC Amendment. Nothing in the revised ACC or MTW ACC Amendment 
forecloses avenues for judicial relief from any HUD action that is 
arbitrary, capricious or contrary to law.
    Comment: Some commenters objected to issuance of the MTW ACC 
Amendment through the Paperwork Reduction Act (``PRA'') rather than the 
notice and comment rulemaking process required by the Administrative 
Procedures Act (the ``APA''). Commenters stated that the PRA standards 
for public comments do not satisfy APA requirements.
    HUD response: The MTW ACC Amendment is an information collection 
under the definitions in 5 CFR 1320.3(c)(1), which states that a 
collection of information may be in any form or format, including a 
contract or an agreement. The ACC is a form with an OMB form number, 
therefore, review and public comment under the PRA are appropriate.
    Contrary to statements made by commenters, the PRA process does 
require solicitation of and response to public comments (see 5 CFR 
1320.5(a)(1)(iii)(F) (requiring ``A summary of the public comments 
received under Sec.  1320.8(d), including actions taken by the agency 
in response to the comments''). HUD received public comments from 
several public housing industry groups and existing MTW agencies and is 
responding to the issues raised with this notice.

    Dated: November 5, 2019.
Colette Pollard,
Department Reports Management Officer, Office of the Chief Information 
Officer.

Moving to Work Amendment to Annual Contributions Contract(s)

    Section 1. This Moving to Work (MTW) Amendment to the Annual 
Contributions Contract(s) (MTW ACC Amendment) is entered into between 
the United States Department of Housing and Urban Development (``HUD'') 
and _____ (the ``Public Housing Agency, ``PHA'').
    Section 2. This MTW ACC Amendment is an amendment to any Annual 
Contributions Contract (``ACC'') or Annual Contributions Terms and 
Conditions (``ACC'') in effect between the PHA and HUD for the Public 
Housing and Housing Choice Voucher programs.
    Section 3. The ACC is amended in connection with the PHA's 
designation as a participant in the expansion of the MTW demonstration 
pursuant to Section 239 of the Consolidated Appropriations Act, 2016, 
Public Law 114-113; 129 Stat. 2897 (2016 MTW Expansion Statute) and 
Section 204 of the Departments of Veterans Affairs and Housing and 
Urban Development and Independent Agencies Appropriations Act, 1996, 
Public Law 104-134; 110 Stat. 1321-281 (1996 MTW statute). The PHA's 
participation in the expansion of the MTW demonstration shall be 
governed by the MTW Operations Notice for the Expansion of the Moving 
to Work Demonstration as it is issued and may be amended in the future, 
or any successor notice issued by HUD, (``the MTW Operations Notice'').
    Section 4. The term of this amendment shall be for 20 years from 
the beginning of the PHA's first full fiscal year following execution 
by the PHA and HUD; or, until termination of this amendment, whichever 
is sooner.
    Section 5. Requirements and Covenants.
    (A) As a participant in the MTW demonstration, the PHA must operate 
in accordance with the express terms and conditions set forth in the 
MTW Operations Notice. The MTW Operations Notice may be superseded or 
amended by HUD at any time during the twenty-year MTW term.
    (B) The PHA will cooperate fully with HUD and its contractors for 
the duration of the HUD-sponsored evaluation of the cohort of the MTW 
Expansion for which the PHA was selected and shall comply with all 
aspects of its Cohort Study as outlined in the selection notice under 
which the PHA was designated.

[[Page 60409]]

    (C) The PHA is exempted from specific provisions of the Housing Act 
of 1937 (``the Act'') and its implementing regulations as specified in 
the Operations Notice. Each such exemption also extends to 
subregulatory guidance to the extent that the subregulatory guidance 
implements the provisions of the Act or its implementing regulations 
exempted pursuant to the Operations Notice. Notwithstanding any 
exemptions pursuant to this MTW ACC amendment and the MTW Operations 
Notice, the PHA remains subject to all other HUD Requirements (which 
include the Public Housing Requirements), as they may be amended in the 
future. Accordingly, if any HUD Requirement, other than the exempted 
provisions of the Act and its implementing regulatory requirements or 
subregulatory guidance, conflicts with any authorization granted by 
this MTW ACC Amendment, the MTW Agency remains subject to that HUD 
Requirement.
    Section 6. At least one year prior to expiration of this MTW ACC 
Amendment,\1\ the PHA shall submit a transition plan to HUD. It is the 
PHA's responsibility to be able to end all MTW activities that it has 
implemented through its MTW Supplement to the PHA Plan upon expiration 
of this MTW ACC Amendment. The transition plan shall describe plans for 
phasing out such activities. The plan may also include any proposals of 
authorizations/features of the ACC Amendment and the MTW Operations 
Notice that the PHA wishes to continue beyond the expiration of the MTW 
ACC Amendment. The PHA shall specify the proposed duration and shall 
provide justification for extension of such authorization/features. HUD 
will review and respond to timely-submitted transition plans from the 
PHA in writing within 75-days or they are deemed approved. Only 
authorizations/features specifically approved for extension shall 
continue beyond the term of the MTW ACC Amendment. The extended 
features shall remain in effect only for the duration and in the manner 
specified in the approved transition plan and be subject to any 
necessary ACC Amendments as required by HUD.
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    \1\ Should the PHA receive an extension(s) of its MTW 
participation (e.g. by extension or replacement of its MTW ACC 
Amendment) the transition plan will be due one year prior to the end 
of the extension(s).
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    Section 7. Termination and Default.
    (A) If the PHA violates or fails to comply with any requirement or 
provision of the ACC, including this amendment, HUD is authorized to 
take any corrective or remedial action described in this Section 7 for 
PHA default or any other right or remedy existing under applicable law, 
or available at equity. HUD will give the PHA written notice of any 
default, which shall identify with specificity the measures, which the 
PHA must take to cure the default and provide a specific time frame for 
the PHA to cure the default, taking into consideration the nature of 
the default. The PHA will have the opportunity to cure such default 
within the specified period after the date of said notice, or to 
demonstrate within 10 days after the date of said notice, by submitting 
substantial evidence satisfactory to HUD, that it is not in default. 
However, in cases involving clear and apparent fraud, serious criminal 
behavior, or emergency conditions that pose an imminent threat to life, 
health, or safety, if HUD, in its sole discretion, determines that 
immediate action is necessary it may institute the remedies under 
Section 7(B) of this MTW ACC Amendment without giving the PHA the 
opportunity to cure.
    (B) If the PHA is in default of this MTW ACC Amendment and/or the 
MTW Operations Notice and the default has not been cured, HUD may, 
undertake any one or all remedies available by law, including but not 
limited to the following:
    i. Require additional reporting by the PHA on the deficient areas 
and the steps being taken to address the deficiencies;
    ii. Require the PHA to prepare and follow a HUD-approved schedule 
of actions and/or a management plan for properly completing the 
activities approved under this MTW ACC Amendment;
    iii. Suspend the MTW waiver authorization for the affected 
activities;
    iv. Require reimbursement by the PHA to HUD for amounts used in 
violation of this MTW ACC Amendment;
    v. Terminate this MTW ACC Amendment and require the PHA to 
transition out of MTW;
    vi. Restrict a PHA's ability to use its MTW funding flexibly; and/
or
    vii. Take any other corrective or remedial action legally 
available.
    (C) The PHA may choose to terminate this MTW ACC Amendment at any 
time. Upon HUD's receipt of written notification from the PHA and a 
copy of a resolution approving termination from its governing board, 
termination will be effective. The PHA will then begin to transition 
out of MTW and will work with HUD to establish an orderly phase-out of 
MTW activities, consistent with Section 6 of this MTW ACC Amendment.
    (D) Nothing contained in this ACC amendment shall prohibit or limit 
HUD from the exercise of any other right or remedy existing under any 
ACC or available under applicable law. HUD's exercise or non-exercise 
of any right or remedy under this amendment shall not be construed as a 
waiver of HUD's right to exercise that or any other right or remedy at 
any time.
    Section 8. Notwithstanding any provision set forth in this MTW ACC 
Amendment, any future law that conflicts with any provision of this ACC 
Amendment, as determined by HUD, shall not be deemed to be a breach of 
this ACC Amendment. Nor shall HUD's execution of any future law be 
deemed a breach of this ACC Amendment. Any future laws affecting the 
PHA's funding, even if that future law causes a decrease in the PHA's 
funding, shall not be deemed a breach of this ACC Amendment. No future 
law or HUD's execution thereof shall serve as a basis for a breach of 
contract claim in any court.
    Section 9. If any clause, or portion of a clause, in this Agreement 
is considered invalid under the rule of law, it shall be regarded as 
stricken while the remainder of this Agreement shall continue to be in 
full effect.
    In consideration of the foregoing covenants, the parties do hereby 
execute this MTW ACC Amendment:
PHA
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UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
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[FR Doc. 2019-24473 Filed 11-7-19; 8:45 am]
BILLING CODE 4210-67-P