Section 209 of the Economic Growth, Regulatory Relief, and Consumer Protection Act: Initial Guidance

 
CONTENT
Federal Register, Volume 84 Issue 31 (Thursday, February 14, 2019)
[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Notices]
[Pages 4097-4099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02359]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6115-N-01]
Section 209 of the Economic Growth, Regulatory Relief, and
Consumer Protection Act: Initial Guidance
AGENCY: Office of the Assistant Secretary for Public and Indian Housing
and the Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Notice.
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SUMMARY: On May 24, 2018, President Trump signed into law the Economic
Growth, Regulatory Relief, and Consumer Protection Act (the ``Economic
Growth Act''). Section 209 of the Economic Growth Act added section 38
to the United States Housing Act of 1937 and makes several amendments
pertaining to small public housing agencies (PHAs) that administer 550
or fewer combined public housing units and vouchers under section 8(o)
that predominantly operate in a rural area. Section 209 also requires
HUD to develop new information systems for public housing consortia,
and to make shared waiting list software available for voluntary use by
multiple PHAs and owners of multifamily properties (hereinafter
referred to in this Notice as, owners) receiving HUD assistance.
Certain statutory amendments made by section 209 became effective 60
days after enactment (July 23, 2018). However, while effective, the
provisions require rulemaking or guidance for implementation. The
guidance in this Notice, read together with the statutory language, is
intended to aid HUD program participants and the public generally in
understanding the reasons for deferred action with respect to specific
statutory provisions. In addition, HUD seeks comment from the public on
appropriate implementation of the section 209 provisions.
DATES: Comments Due Date: April 15, 2019.
ADDRESSES: Interested persons are invited to submit comments regarding
this Notice. All comments must refer to the proposal by name and docket
number. There are two methods for submitting public comments:
    1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW, Room 10276,
Washington, DC 20410-0500.
    2. Electronic Submission of Comments. Interested persons may also
submit comments electronically through the Federal eRulemaking Portal
at www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov website can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
    Note: To receive consideration as public comments, comments must be
submitted through one of the methods specified above. Again, all
submissions must refer to the docket number and title of this Notice.
    No Facsimiled Comments. Facsimiled (faxed) comments are not
acceptable.
    Public Inspection of Public Comments. Copies of all comments
submitted are available for inspection and downloading at
www.regulations.gov. In addition, all properly submitted comments and
communications submitted to HUD will be available for public inspection
and copying between 8 a.m. and 5 p.m., weekdays, at the above address.
Due to security measures at the HUD Headquarters building, an advance
appointment to review the public comments must be scheduled by calling
the Regulations Division at 202-708-3055 (this is not a toll-free
number). Individuals with speech or hearing impairments may access this
number via TTY by calling the Federal Relay Service at 800-877-8339
(this is a toll-free number).
FOR FURTHER INFORMATION CONTACT: Harold Katsura, Program Analyst,
Office of Policy, Program, and Legislative Initiatives, Office of
Public and Indian Housing, Department of Housing and Urban Development,
451 7th Street SW, Room 3178, Washington, DC 20410; telephone number
202-402-3042 (this is not a toll-free number). Persons with hearing or
speech impairments may access these numbers via TTY by calling the
Federal Relay Service, toll-free, at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Introduction
    On May 24, 2018, President Trump signed the Economic Growth Act
into law (Pub. L. 115-174, 132 Stat. 1296).\1\ The Economic Growth Act
amends the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.)
(1937 Act) and other housing laws to modify multiple HUD programs. The
purpose of the statutory amendments is to promote economic growth,
provide tailored regulatory relief, and enhance consumer protections.
Section 209 of the Economic Growth Act amends Title I of the 1937 Act
by adding several provisions pertaining to small PHAs that
predominantly operate in a rural area as described in 12 CFR
1026.35(b)(2)(iv)(A), including
[[Page 4098]]
streamlining certain requirements related to program inspections and
evaluations, corrective action requirements, environmental reviews, and
energy conservation funding and financing requirements. Section 209
also requires HUD to develop new information systems for public housing
consortia, and to make shared waiting list software available for
voluntary use by multiple PHAs and owners receiving HUD assistance.
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    \1\ The text of the Economic Growth Act, along with a summary
prepared by the Congressional Research Service, can be found at
https://www.congress.gov/bill/115th-congress/senate-bill/2155.
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    Certain statutory amendments made by section 209 of the Economic
Growth Act became effective 60 days after enactment (July 23, 2018).
However, while effective, the provisions require rulemaking or guidance
for implementation. PHAs and owners may not use the provisions of the
Economic Growth Act until HUD issues a rule or appropriate guidance.
Further, existing HUD policies and procedures continue to apply until
such time as HUD issues the necessary final implementing regulations or
guidance.
    The guidance in this Notice, read together with the statutory
language, is intended to aid HUD program participants and the public
generally in understanding the reasons for deferred action with respect
to specific statutory provisions. In addition, HUD seeks comment from
the public on the implementation of the section 209 provisions. HUD
welcomes comment on all of the provisions discussed in this Notice and,
specifically, on the topics identified for comment below. All timely
comments will be considered in the development of the required rule or
guidance. HUD is committed to working closely with its program
participants to see that the changes made by section 209 of the
Economic Growth Act are successfully implemented and that these
programs are significantly improved to provide assistance to the
families HUD serves.
II. Implementation Guidance and Specific Requests for Comments
A. Section 209(a). Small PHAs
    Section 209(a) of the Economic Growth Act amends Title I of the
1937 Act by adding a new section 38 that defines small PHAs (i.e., PHAs
that administer 550 or fewer combined public housing units and vouchers
under section 8(o) that predominantly operate in a rural areas, as
described in 12 CFR 1026.35(b)(2)(iv)(A)). New section 38 also
streamlines certain requirements related to program inspections and
evaluations.
    1. Section 38(a) of the 1937 Act--Definitions. New section 38(a)
establishes the definitions applicable to the other provisions of
section 38. Specifically, section 38(a) provides definitions for
``Housing Voucher Program,'' ``Small Public Housing Agency,'' and
``Troubled Small Public Housing Agency.''
    Implementation action: The definitions require further
clarification via rulemaking for implementation. For example, the
definition of ``Small Public Housing Agency'' includes PHAs that
administer no more than 550 dwelling units and vouchers under section
8(o) of the 1937 Act and ``predominantly operate in a rural area,'' as
described in 12 CFR 1026.35(b)(2)(iv)(A).\2\ This phrase
``predominately operate in a rural area'' requires further
clarification and interpretation by HUD. Further, the definitions apply
to statutory provisions that, as discussed below, require notice and
comment rulemaking for implementation. HUD is undertaking rulemaking to
implement these provisions and will address the definitions in the
broader context of the rules implementing the related provisions.
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    \2\ The referenced regulations are the Truth in Lending
(Regulation Z) regulations issued by the Bureau of Consumer
Financial Protection and codified at 12 CFR part 1026. The
regulations setting forth the definition of rural area can be found
at: https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=2af425fb88e5aca2c09e0b4adc8a50a6&mc=true&n=pt12.9.1026&r=PART&ty=HTML#se12.9.1026_135.
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Specific Topics for Comment
    (i) How should HUD interpret the words ``predominantly operates''
in the phrase ``predominantly operates in a rural area''? For example,
a PHA could be deemed to predominantly operate in a rural area if one
or more of the following conditions apply: (1) The PHA's physical
address is in a rural area (a PHA-based definition); (2) more than 50
percent of the buildings occupied by Housing Choice Voucher
beneficiaries and public housing residents are in rural areas (a
building-based definition); or (3) more than 50 percent of the tenants
served live in rural areas (a household-based definition). Please note
that HUD is not seeking comment on the definition of ``rural area'' as
this is provided in statute.
    (ii) How often should HUD reassess the rural nature of each PHA?
For example, should HUD reclassify PHAs every time the Office of
Management and Budget, the U.S. Census Bureau, or the U.S. Department
of Agriculture's Economic Research Service updates data used in the
definition of rural areas? Also, the ``predominately operates''
component may change when buildings are added or lost, or when tenants
move under a household-based definition.
    (iii) Are there other factors or approaches that HUD should
consider in determining whether a PHA predominantly operates in a rural
area?
    (iv) Are there factors that HUD should consider in determining
whether a PHA meets the criteria of administering 550 or fewer combined
public housing and section 8(o) units?
     2. Sections 38(c)(1) and (c)(2) of the 1937 Act--Program
Inspections and Evaluations for Public Housing and Section 8 Voucher
Units. Section 38(c)(1) as inserted by the Economic Growth Act requires
HUD to inspect small PHA projects no less than every 3 years. Section
38(c)(1) also applies existing physical inspection standards for
projects assisted under section 8 of the 1937 Act to small PHAs.
Section 38(c)(2) requires small PHAs administering section 8 voucher
rental assistance to make periodic physical inspections of dwelling
units at least once every 3 years.\3\
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    \3\ Sections 38(c)(1) (for public housing) and (c)(2) (for
Section 8 voucher units) also clarify that HUD or the PHA must
continue conducting lead safety inspections when applicable in
accordance with the Lead-Based Paint Poisoning Prevention Act (42
U.S.C. 4822). These provisions emphasize following existing
requirements and therefore do not require further action for
implementation. Safety inspection requirements under the Lead-Based
Paint Poisoning Prevention Act can be found at: https://www.gpo.gov/fdsys/pkg/USCODE-2009-title42/html/USCODE-2009-title42-chap63-subchapIII-sec4822.htm.
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    Implementation action: This provision requires further review and
interpretation by HUD. HUD is considering the appropriate scope of the
term ``projects assisted under section 8'' as used in section 38(c)(1)
and will address the subject more fully in future rulemaking. Further,
as noted above, the definition of small PHA requires further
consideration and implementation through rulemaking.
    3. Section 38(c)(3) of the 1937 Act--Troubled Small PHAs. Section
38(c)(3) as inserted by the Economic Growth Act identifies criteria for
troubled small PHAs and establishes an appeals process under which a
small PHA may dispute a designation as a troubled small PHA. The new
section also establishes requirements for Corrective Action Agreements
under which designated troubled small PHAs shall undertake actions to
correct identified deficiencies.
    Implementation action: Section 38(c)(3) of the 1937 Act requires
HUD to issue regulations to establish the appeals process and determine
how Corrective Action Agreements may be tailored for individual
troubled
[[Page 4099]]
properties. HUD is developing these regulations.
    4. Section 38(d) of the 1937 Act--Reduction of Administrative
Burdens. Section 38(d)(1) as inserted by the Economic Growth Act
exempts small PHAs from any environmental review requirements with
respect to development or modernization projects costing no more than
$100,000. Section 38(d)(2) requires HUD, by regulation, to streamline
procedures for environmental reviews for those small PHAs with
development or modernization projects costing more than $100,000.
    Implementation action: Section 38(d)(2) requires HUD to issue
regulations to determine criteria for applicable development and
modernization projects. By statute, section 38(d)(2) requires HUD to
issue regulations to establish streamlined procedures for environmental
reviews. HUD is developing these regulations.
Specific Topic for Comment
    How should HUD define the $100,000 total cost threshold for
development or modernization project costs? For example, what types of
costs should be included? Should costs associated with disposition and
conversion actions be treated as development or modernization costs?
B. Section 209(b). Energy Conservation
    Section 209(b) of the Economic Growth Act amends the Operating Fund
requirements in section 9(e)(2) of the 1937 Act to authorize a small
PHA (as defined in the new section 38(a), discussed above) to elect to
be paid for utility and waste management costs for a period of not more
than 20 years based on its average annual consumption during the
preceding 3-year period.
    Implementation action: Section 209(b) requires rulemaking to modify
existing procedures in a manner that is least disruptive to the
existing Operating Fund formula funding cycle, as well as to the
policies and procedures that currently govern utility reimbursements,
savings, third party agreements and financing, while at the same time
enabling small PHAs to utilize the additional flexibility provided by
section 209. For these provisions, PHAs and owners may not use the
provisions of the Economic Growth Act until HUD issues a rule. Further,
and as discussed above, the new definition of small PHA necessitates
further consideration by HUD and implementation through rulemaking.
Specific Topics for Comment
    (i) The statute states that: ``The Secretary shall make an initial
one-time adjustment in the consumption base level to account for
differences in the heating degree day average over the most recent 20-
year period compared to the average in the consumption base level.''
What are good sources for obtaining 20 years of heating degree day
data? What resources, computer analysis programs, databases, or
websites could HUD consult to determine utility consumption adjustments
to account for temperature variations relative to the most recent 20
years?
    (ii) The statute permits PHAs to use savings for either Capital
Fund or Operating Fund eligible expenses. PHAs with less than 250 units
can follow PIH Notice 2016-18 \4\ or a successor notice on the flexible
use of operating funds. To the extent that PHAs with more than 250
units use this flexibility to expend operating funds for capital
purposes, they will need to document the savings, and track the
expenditure of the funds. What methods for tracking and reporting on
the expenditure of such operating funds would enable monitoring, but
limit burden to PHAs?
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    \4\ Available at: https://www.hud.gov/sites/documents/PIH-2016-18.PDF.
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C. Section 209(c). Reporting by Agencies Operating in Consortia
    Section 209(c) of the Economic Growth Act requires HUD to develop
and deploy electronic information systems to accommodate full
consolidated reporting by PHAs electing to act in consortia.
    Implementation action: This provision requires HUD to develop and
deploy electronic information systems no later than 180 days after
enactment of the Economic Growth Act (November 20, 2018). HUD is
developing such electronic information systems and will keep program
participants updated as necessary to facilitate transition to the new
systems.
    Specific topics for comment: What are the current limitations with
HUD's systems that prevent full consolidated reporting by PHAs engaged
in consortia? What improvements to HUD's systems should HUD consider
for such reporting?
D. Section 209(e). Shared Waiting Lists
    As discussed above, section 209(e) of the Economic Growth Act
requires HUD to make available one or more software programs that will
facilitate the voluntary use of shared waiting lists by PHAs and owners
receiving HUD assistance. While the requirement that HUD make available
software programs is self-implementing, HUD is also required to publish
guidance for implementing such lists.
    Implementation action: This provision requires HUD to make
available software and publish guidance no later than one year after
enactment of the Economic Growth Act (May 24, 2019). HUD is exploring
options for implementing the required software and will publish
required guidance accordingly.
Specific Topics for Comment
    (i) Because the statute refers to software that supports the use of
``shared waiting lists'' by PHAs and owners receiving HUD assistance,
HUD seeks public input on the definition of a ``shared waiting list.''
HUD is considering defining ``shared waiting list software'' as
software that enables a household to submit a single application to get
on multiple waiting lists. One of the most commonly cited examples of a
shared waiting list is the Massachusetts Section 8 Housing Choice
Voucher Centralized Waiting List that serves about 100 PHAs. Despite
its name, the Centralized Waiting List is not a single waiting list
used by the participating PHAs. Instead, this is a single application
system that generates a unique waiting list for each PHA by sorting all
applicants based on the PHA's preferences, which typically include a
local preference for households living or working in the PHA's
jurisdiction.
    (ii) What types of PHAs and owners might be the best candidates for
a shared waiting list?
    (iii) Do owners receiving HUD assistance have unique needs that may
make it difficult for them to use a shared waiting list?
    (iv) Would there be a need for additional software security in
providing access to, and using, a shared waiting list?
    (v) HUD also encourages the submission of examples where PHAs or
owners have used shared waiting lists and seeks opinions regarding the
need for HUD to provide software support for this function and what
form this support might take.
    Dated: February 11, 2019.
Dominique G. Blom,
General Deputy Assistant Secretary for Public and Indian Housing.
Brian D. Montgomery,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 2019-02359 Filed 2-13-19; 8:45 am]
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