Indian Housing Program: Amendments; Final Rule; Technical Corrections

Summary

On April 10, 1995, HUD published a final rule amending the Indian Housing consolidated regulations and moving these regulations from part 905 to a new part 950. This document corrects several minor and inadvertent omissions from that final rule.

Full text

SUMMARY: On April 10, 1995, HUD published a final rule amending the 
Indian Housing consolidated regulations and moving these regulations 
from part 905 to a new part 950. This document corrects several minor 
and inadvertent omissions from that final rule.

EFFECTIVE DATE: The effective date of this correction is July 18, 1995.

FOR FURTHER INFORMATION CONTACT: Dominic Nessi, Deputy Assistant 
Secretary for Native American Programs, Public and Indian Housing, Room 
B-133, Department of Housing and Urban Development, 451 Seventh Street 
SW, Washington, DC 20410, telephone (202) 755-0032. Hearing- or speech-
impaired persons may use the TDD number (202) 708-0850. (These are not 
toll-free numbers.)

SUPPLEMENTARY INFORMATION: On April 10, 1995, HUD published a final 
rule amending the Indian Housing consolidated regulations and moving 
these regulations from part 905 to a new part 950 (60 FR 18174). These 
amendments were necessary to simplify program processes, reduce the 
number of regulatory requirements, and provide more flexibility to 
local tribal and Indian housing authority officials in the 
administration of the Indian Housing program.
    This document corrects several minor and inadvertent omissions from 
that final rule. First, this document reinstates the amendments to the 
definition of annual income that were made by HUD's Combined Income and 
Rent interim rule, published in the Federal Register on April 5, 1995 
(60 FR 17388). The Indian Housing final rule and the Combined Income 
and Rent interim rule were in the final stages of departmental review 
at the same time. While HUD intended the Indian Housing final rule to 
be comprehensive, it did not intend to supplant the necessary changes 
that were made by the Combined Income and Rent interim rule.
    Second, this document corrects the section of the Indian Housing 
final rule regarding the establishment of Indian Housing Authorities 
(IHAs) by tribal ordinance. The language of the section appears to 
provide that an IHA, and not the tribe, would enact such an ordinance. 
Such an interpretation would clearly be incorrect; therefore, this 
document clarifies that section to reflect that the tribe would enact 
the ordinance.
    Third, this document inserts a provision clarifying that HUD's one-
time approval of an IHA's Indian preference methods would continue to 
apply under the new regulations. This ``grandfather'' provision was 
inadvertently omitted from the Indian Housing final rule. HUD intended 
that those IHAs whose preference methods were already approved under 
previous requirements would not have to seek approval again under HUD's 
new, less prescriptive requirements.
    Fourth, this document corrects language in the provisions of the 
Indian Housing final rule regarding the conversion of projects in the 
Mutual Help Homeownership Opportunity program and the Turnkey III 
Program. In the Indian Housing final rule, HUD simplified these 
provisions by eliminating the formal application process. This document 
will remove the references to that process that are now obsolete but 
that HUD inadvertently left in the rule.
    Fifth, this document reinstates, in subpart H of the Indian Housing 
final rule (Lead-Based Paint Poisoning Prevention), a reference that was 
inadvertently omitted to the Lead-Based Paint Interim Guidelines for 
Hazard Identification and Abatement in Public and Indian Housing. As 
the preamble to the Indian Housing final rule states (60 FR 18183), HUD 
did not intend to make changes to the Lead-Based Paint (LBP) provisions 
in this rule,1 but only intended to republish them in order to 
present a consolidated set of regulations. HUD also takes the 
opportunity in this document to conform the LBP provisions to Federal 
Register requirements by informing the public that they can request a 
copy of the guidelines from HUD's Office of Lead-Based Paint Abatement 
and Poisoning Prevention.

    \1\ However, HUD is developing a proposed rule that would 
implement sections 1012 and 1013 of the Residential Lead-Based Paint 
Hazard Reduction Act of 1992 and set forth new requirements 
concerning lead-based paint notice, evaluation, and reduction for 
all of the HUD's programs, including Indian housing.
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    Accordingly, FR Doc. 95-8346, a final rule published in the Federal 
Register on April 10, 1995 (60 FR 18174) is corrected as follows:
    1. On page 18188, beginning in column three, and ending on page 
18190, in column one, Sec. 950.102 is corrected by revising the 
definition of ``Annual income'' to read as follows:


Sec. 950.102  Definitions.

* * * * *
    Annual income. Annual income is the anticipated total income from 
all sources received by the family head and spouse (even if temporarily 
absent) and by each additional member of the family, including all net 
income derived from assets, for the 12-month period following the 
effective date of the initial determination or reexamination of income, 
exclusive of certain types of income as provided in paragraph (2) of 
this definition.
    (1) Annual income includes, but is not limited to:
    (i) The full amount, before any payroll deductions, of wages and 
salaries, overtime pay, commissions, fees, tips and bonuses, and other 
compensation for personal services;
    (ii) The net income from operation of a business or profession. 
Expenditures for business expansion or amortization of capital 
indebtedness shall not be used as deductions in determining net income. 
An allowance for depreciation of assets used in a business or 
profession may be deducted, based on straight line depreciation, as 
provided in Internal Revenue Service regulations. Any withdrawal of 
cash or assets from the operation of a business or profession will be 
included in income, except to the extent the withdrawal is 
reimbursement of cash or assets invested in the operation by the 
family;
    (iii) Interest, dividends, and other net income of any kind from 
real or personal property. Expenditures for amortization of capital 
indebtedness shall not be used as deductions in determining net income. 
An allowance for depreciation is permitted only as authorized in 
paragraph (1)(ii) of this definition. Any withdrawal of cash or assets 
from an investment will be included in income, except to the extent the 
withdrawal is reimbursement of cash or assets invested by the family. 
Where the family has net family assets in excess of $5,000, annual 
income shall include the greater of the actual income derived from all 
net family assets or a percentage of the value of such assets based on 
the current passbook savings rate as determined by HUD;
    (iv) The full amount of periodic payments received from social 
security, annuities, insurance policies, retirement funds, pensions, 
disability or death benefits, and other similar types of periodic 
receipts, including a lump-sum payment for the delayed start of a 
periodic payment (but see paragraph (2)(xiv) of this definition);
    (v) Payments in lieu of earnings, such as unemployment and 
disability compensation, worker's compensation, and severance pay (but 
see paragraph (2)(iii) of this definition);
    (vi) Welfare assistance. If the welfare assistance payment includes 
an amount specifically designated for shelter and utilities that is 
subject to adjustment by the welfare assistance agency in accordance 
with the actual cost of shelter and utilities, the amount of welfare 
assistance income to be included as income shall consist of:
    (A) The amount of the allowance or grant exclusive of the amount 
specifically designated for shelter or utilities; plus
    (B) The maximum amount that the welfare assistance agency could, in 
fact, allow the family for shelter and utilities. If the family's 
welfare assistance is ratably reduced from the standard of need by 
applying a percentage, the amount calculated under paragraph (1)(vi)(B) 
of this definition shall be the amount resulting from one application 
of the percentage;
    (vii) Periodic and determinable allowances, such as alimony and 
child support payments, and regular contributions or gifts received 
from persons not residing in the dwelling; and
    (viii) All regular pay, special pay, and allowances of a member of 
the Armed Forces (but see paragraph (2)(vii) of this definition).
    (2) Annual income does not include the following:
    (i) Income from employment of children (including foster children) 
under the age of 18 years;
    (ii) Payments received for the care of foster children or foster 
adults (usually individuals with disabilities, unrelated to the tenant 
family, who are unable to live alone);
    (iii) Lump-sum additions to family assets, such as inheritances, 
insurance payments (including payments under health and accident 
insurance and worker's compensation), capital gains, and settlement for 
personal or property losses (but see paragraph (1)(v) of this 
definition);
    (iv) Amounts received by the family that are specifically for, or 
in reimbursement of, the cost of medical expenses for any family 
member;
    (v) Income of a Live-in Aide;
    (vi) The full amount of student financial assistance paid directly 
to the student or to the educational institution;
    (vii) The special pay to a family member serving in the Armed 
Forces who is exposed to hostile fire;
    (viii)(A) Amounts received under training programs funded by HUD;
    (B) Amounts received by a disabled person that are disregarded for 
a limited time for purposes of supplemental security income eligibility 
and benefits because they are set aside for use under a Plan to Attain 
Self-Sufficiency (PASS);
    (C) Amounts received by a participant in other publicly assisted 
programs that are specifically for or in reimbursement of out-of-pocket 
expenses incurred (special equipment, clothing, transportation, child 
care, etc.) and that are made solely to allow participation in a 
specific program;
    (D) A resident service stipend. A resident service stipend is a 
modest amount (not to exceed $200 per month) received by an Indian 
housing resident for performing a service for the IHA, on a part-time 
basis, that enhances the quality of life in Indian housing. Such 
services may include, but are not limited to, fire patrol, hall 
monitoring, lawn maintenance, and resident initiatives coordination. No 
resident may receive more than one such stipend during the same period 
of time; or
    (E) Compensation from State or local employment training programs 
and training of a family member as resident management staff. Amounts 
excluded by this provision must be received under employment training 
programs with clearly defined goals and objectives, and are excluded only for a limited period as determined in 
advance by the IHA;
    (ix) Temporary, nonrecurring, or sporadic income (including gifts);
    (x) For all initial determinations and reexaminations of income 
carried out on or after April 23, 1993, reparation payments paid by a 
foreign government pursuant to claims filed under the laws of that 
government by persons who were persecuted during the Nazi era;
    (xi) Earnings in excess of $480 for each full-time student 18 years 
old or older (excluding the head of household and spouse);
    (xii) Adoption assistance payments in excess of $480 per adopted 
child;
    (xiii) The earnings and benefits to any resident resulting from the 
participation in a program providing employment training and supportive 
services in accordance with the Family Support Act of 1988, section 22 
of the U.S. Housing Act of 1937 (42 U.S.C. 1437t), or any comparable 
Federal, State, tribal, or local law during the exclusion period. For 
purposes of paragraph (2)(xiii) of this definition, the following 
definitions apply:
    (A) Comparable Federal, State, tribal, or local law means a program 
that provides employment training and supportive services and that:
    (1) Is authorized by Federal, State, tribal, or local law;
    (2) Is funded by Federal, State, tribal, or local government;
    (3) Is operated or administered by a public agency; and
    (4) Has as its objective assisting participants in acquiring 
employment skills.
    (B) Exclusion period means the period during which the resident 
participates in a program described in this definition, plus 18 months 
from the date the resident begins the first job acquired by the 
resident after completion of such program that is not funded by public 
housing assistance under the U.S. Housing Act of 1937. If the resident 
is terminated from employment without good cause, the exclusion period 
shall end.
    (C) Earnings and benefits means the incremental earnings and 
benefits resulting from a qualifying employment training program or 
subsequent job;
    (xiv) Deferred periodic payments of supplemental security income 
and social security benefits that are received in a lump-sum payment;
    (xv) Amounts received by the family in the form of refunds or 
rebates under State or local law for property taxes on the dwelling 
unit;
    (xvi) Amounts paid by a State agency to a family with a 
developmentally disabled family member living at home to offset the 
cost of services and equipment needed to keep the developmentally 
disabled family member at home; or
    (xvii) Amounts specifically excluded by any other Federal statute 
from consideration as income for purposes of determining eligibility or 
benefits under a category of assistance programs that includes 
assistance under the U.S. Housing Act of 1937. A notice will be 
published in the Federal Register and distributed to IHAs identifying 
the benefits that qualify for this exclusion. Updates will be published 
and distributed when necessary.
    (3) If it is not feasible to anticipate a level of income over a 
12-month period, the income anticipated for a shorter period may be 
annualized subject to a redetermination at the end of the shorter 
period.
    (4) Any family receiving the reparation payments referred to in 
paragraph (2)(x) of this definition that has been requested to repay 
assistance under this part as a result of receipt of such payments 
shall not be required to make further repayments on or after April 23, 
1993.
* * * * *
    2. On page 18194, in column three, and immediately before 
Sec. 950.110, subpart A is corrected by adding a new Sec. 950.103, to 
read as follows:


Sec. 950.103  Effective date.

    In Secs. 950.102, paragraphs (2)(ii), (2)(vi), (2)(viii)(D) through 
(E), (2)(xi), (2)(xii), (2)(xv), and (2)(xvi) of the definition of 
Annual income shall expire and shall not be in effect after May 6, 
1996, unless prior to May 6, 1996, HUD publishes changes to those 
paragraphs in the definition of Annual income in Sec. 950.102 or 
publishes a notice in the Federal Register to extend the effective 
date.
    3. On page 18197, in column three, Sec. 950.126 is corrected by 
revising paragraph (d)(2), to read as follows:


Sec. 950.126  Establishment of IHAs by tribal ordinance.

* * * * *
    (d) * * *
    (2) An IHA must certify that the ordinance has been enacted 
pursuant to any constitutional law or practice and that it has the 
local cooperation required by law.
    4. On page 18202, in column two, Sec. 950.175 is corrected by 
revising paragraph (d)(1)(iii), to read as follows:


Sec. 950.175  Indian preference requirements.

* * * * *
    (d) * * *
    (1) * * *
    (iii) Develop and incorporate into their procurement policy, 
subject to HUD Area ONAP one-time approval, the IHA's method of 
providing preference. In no instance shall HUD approve a method that 
provides preference based upon affiliation or membership in a 
particular tribe or group of tribes. Indian preference methods adopted 
by an IHA prior to May 10, 1995 that met the Indian preference 
requirements of program regulations as they existed immediately before 
May 10, 1995 are considered to have received one-time approval of the 
HUD Area ONAP.
* * * * *
    5. On page 18226, in column two, Sec. 950.437 is corrected by 
redesignating paragraph (c)(1) as paragraph (c).
    6. On page 18229, in column one, Sec. 950.455 is corrected by 
revising the second sentence in paragraph (c), to read as follows:


Sec. 950.455  Conversion of rental projects.

* * * * *
    (c) Submission requirements. * * * The HUD Area ONAP shall review 
the request for legal sufficiency; tribal acceptance; demonstration of 
family interest; evidence that units are habitable, safe, and sanitary; 
family qualifications as discussed in paragraph (b)(2) of this section; 
and financial feasibility. * * *
    7. On page 18229, in the first column, Sec. 950.458 is corrected by 
revising the second sentence in paragraph (c), to read as follows:


Sec. 950.458  Conversion of Mutual Help projects to rental program.

* * * * *
    (c) Submission requirements. * * * The HUD Area ONAP shall review 
the request for legal sufficiency, tribal acceptance, demonstration of 
family interest, and financial feasibility. * * *
    8. On page 18231, in column one, Sec. 950.503 is corrected by 
revising the second sentence in paragraph (c), to read as follows:


Sec. 950.503  Conversion of Turnkey III developments.

* * * * *
    (c) Submission requirements. * * * The HUD Area ONAP shall review 
the request for legal sufficiency, tribal acceptance, demonstration of 
family interest, and financial feasibility. * * *
    9. On page 18237, in column one, Sec. 950.553 is corrected by 
revising paragraph (c), to read as follows:


Sec. 950.553  Testing and abatement applicable to development.

* * * * * (c) Compliance with guidelines. It is strongly encouraged, but not 
required, that all such properties be tested in accordance with the 
Lead-Based Paint Interim Guidelines for Hazard Identification and 
Abatement in Public and Indian Housing (hereafter Lead-Based Paint 
Interim Guidelines), as periodically amended or updated, and other 
future official departmental issuances related to lead-based paint, 
before any irrevocable commitment is made to acquire the property. The 
Lead-Based Paint Interim Guidelines are available by contacting the 
following office: Department of Housing and Urban Development, Office 
of Lead-Based Paint Abatement and Poisoning Prevention, Room B-133, 451 
Seventh Street, SW, Washington, DC 20410; telephone (202) 755-1805. 
Properties that have already been tested in accordance with the Lead-
Based Paint Poisoning Prevention Act as amended by the Housing and 
Community Development Act of 1987 need not be tested again. If lead-
based paint is found in a property to be acquired, the cost of testing 
and abatement shall be considered when making the cost comparison to 
justify new construction, as well as when meeting maximum total 
development cost limitations.
* * * * *
    10. On page 18237, in column three, Sec. 950.570 is corrected by 
revising paragraph (c), to read as follows:


Sec. 950.570  Procedures involving EBLs.

* * * * *
    (c) Testing. Testing shall be completed within five days after 
notification to the IHA of the identification of the EBL child. It is 
strongly recommended, but not required, that IHAs use the testing 
methods outlined in Part II of the Lead-Based Paint Interim Guidelines, 
as periodically amended or updated, and other future official 
departmental issuances related to lead-based paint. A qualified 
inspector or laboratory shall certify in writing the precise results of 
the inspection. Testing services available from State, local, or tribal 
health or housing agencies or an organization recognized by HUD shall 
be utilized to the extent available. If the results equal or exceed a 
level of 1 mg/cm2 or .5% by weight, the results shall be provided to 
the tenant or the family of the EBL child using the IHA-owned or 
operated child care facility. Testing will be considered an eligible 
modernization cost under subpart I of this part only upon IHA 
certification that testing services are otherwise unavailable.
* * * * *
    Dated: June 28, 1995.
Michael B. Janis,
General Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 95-17540 Filed 7-17-95; 8:45 am]
BILLING CODE 4210-33-P  

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