SUPPLEMENTARY INFORMATION:

I. Flexibilities That Are Available to Tribes, Tribally Designated Housing Entities, and the Department of Hawaiian Homelands for PDDs Declared in CY 2026

The following is a list of HUD requirement waivers and flexibilities available for IHBG, ICDBG, and NHHBG grantees located within PDD areas. Grantees may use any of the waivers and flexibilities below to assist their communities in addressing challenges and issues that result from a disaster covered by a PDD.

A. 24 CFR Part 1000 (IHBG)

1. Total Development Costs (24 CFR 1000.156, 1000.158, 1000.160, and 1000.162)

The IHBG regulations at 24 CFR part 1000 require that affordable housing under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) be of moderate design, which means housing that is of a size and with amenities consistent with unassisted housing offered for sale in the Indian Tribe's general geographic area to buyers who are at or below the area median income (AMI). To achieve this requirement the recipient must either adopt written standards for its affordable housing programs that reflect this requirement or use total development cost (TDC) limits published periodically by HUD that establish the maximum amount of funds (from all sources) that the recipient may use to develop or acquire/rehabilitate affordable housing. The limits provided by the TDC may not, without prior HUD approval, exceed by more than 10 percent the TDC maximum cost for the project. Non-dwelling structures used to support an affordable housing activity must be of a design, size, and with features or amenities that are reasonable and necessary to accomplish the purpose intended by the structures.

Based on HUD's experience, disasters resulted in disruptions to supply chains, lead to labor and contractor shortages, and result in overall increases in construction costs. Given this possibility of increased costs of resources and the urgency to rehabilitate homes following a disaster, HUD is waiving the TDC regulatory requirements in 24 CFR 1000.156, 1000.158, 1000.160, and 1000.162 relating to limitations on cost or design standards and TDC with respect to dwelling and non-dwelling units developed, acquired, or assisted with IHBG funding. Under this waiver, an IHBG recipient may exceed the current TDC maximum by 20 percent without HUD review or approval (other than notification by the grantee pursuant to the procedures outlined in Section II of this notice). The recipient, however, must maintain documentation that indicates the dwelling units and non-dwelling structures developed, acquired, or assisted with this funding will, after the PDD, be for IHBG-eligible families and the design, size, and amenities are moderate and comparable to housing in the area. The TDC limits can be exceeded by more than 20 percent if the recipient receives written approval from HUD Headquarters. This waiver applies to both single-family and multi-family housing, as well as non-dwelling structures.

2. Income Verification (24 CFR 1000.128)

24 CFR 1000.128 requires IHBG recipients to verify that a family is income eligible. Families are required to provide documentation to verify this determination, and a recipient is required to maintain that documentation. Families may be required by the IHBG recipient to periodically verify income after initial occupancy, and the recipient is required to maintain documentation.

Based on HUD's experience and during a PDD, displaced families may not have access to their income documentation, HUD is waiving section 1000.128 and allowing IHBG recipients may carry out intake and other tasks necessary to verify income for families displaced by a disaster through alternative means if the IHBG recipient chooses to do so, including allowing income self-certification through an email with a self-certification form signed by the family.

This waiver of income verification requirements under 24 CFR 1000.128 is effective for a period of six months starting from the date that the IHBG recipient first notifies HUD that it intends to use this waiver flexibility. ( printed page 35241) After the six months expire, all income verifications must comply with standard requirements.

3. Assistance to Middle-Income Families Impacted by a Disaster (24 CFR 1000.104, 1000.106, 1000.108, and 1000.110)

Generally, section 201 of NAHASDA and the IHBG regulations at 24 CFR 1000.104, 1000.106, 1000.108, and 1000.110 require that IHBG recipients limit assistance to low-income Native American families, with some exceptions for non-low-income families at 80 to 100 percent AMI, families over 100 percent of AMI, and essential families under section 201(b)(3) of NAHASDA. Section 201(b)(2) and 24 CFR 1000.110 provide that an IHBG recipient may aid a non-low-income family upon a documented determination by the recipient that there is a need for housing for such family that cannot reasonably be met without such assistance. 24 CFR 1000.110(c) provides that a recipient may use up to 10 percent of the amount planned for the Tribal program year for families whose income falls within 80 to 100 percent of AMI without HUD approval. HUD approval is required if a recipient plans to use more than 10 percent of the amount planned for the Tribal program year for such assistance or to provide housing for families with income over 100 percent of AMI. Finally, 24 CFR 1000.110(d) provides that non-low-income families cannot receive the same benefits provided low-income Indian families. The amount of rental assistance, homeownership assistance, and other assistance that non-low-income families may receive will be determined in accordance with the formula provided in that regulation.

Based on HUD's experience, disasters devastate and displace Native American families in a community of all incomes, make housing uninhabitable, damage community infrastructure, and result in a loss of life and property. IHBG recipients may find it in the public interest to aid non-low-income families that are displaced due to a disaster, including by using IHBG funds to provide such assistance as temporary rental assistance to otherwise ineligible families in IHBG-assisted housing owned or operated by the recipient, housing such families in hotels/motels and similar facilities, providing such families with necessary relocation assistance, and more. To help alleviate the impact of disasters on Tribal communities, HUD waives 24 CFR 1000.104, 1000.106, 1000.108, and 1000.110 to the extent necessary to allow for the following flexibilities:

(a) IHBG recipients in PDDs may exceed the 10 percent cap on serving Native American families whose income falls within 80 to 100 percent of AMI without HUD approval, provided the recipient decides that the families are impacted by the disaster and that there is a need for housing for such family that cannot reasonably be met without such assistance.

(b) IHBG recipients in PDDs may provide IHBG assistance to middle-income Native American families whose income is at or below 120 percent of AMI without HUD approval, provided the recipient decides that the families are impacted by the disaster and that there is a need for housing for such family that cannot reasonably be met without such assistance.

In all cases, assistance to these non-low-income families must still comply with limits on assistance specified in 24 CFR 1000.110(d). Additionally, all assistance must be temporary in nature. For instance, such families may receive temporary rental assistance that is time-limited pursuant to the recipient's policies but may not receive permanent tenant-based rental assistance with no specified end date. IHBG recipients must ensure that the IHBG assistance provided does not result in a duplication of benefits. For example, IHBG recipients should not pay for costs that are already covered by private insurance or other Federal, State, or Tribal funds or programs. Finally, when providing this assistance, IHBG recipients must also maintain records documenting that all these criteria were met at the time that such assistance was provided.

B. 24 CFR Part 1003 (ICDBG)

1. Emergency Payments for Up to Six Months (24 CFR 1003.207(b)(4))

Under 24 CFR 1003.207(b)(4), the general rule is that ICDBG funds may not be used for income payments. For purposes of the ICDBG program, income payments mean a series of subsistence-type grant payments made to an individual or family for items such as food, clothing, housing (rent or mortgage), or utilities. However, ICDBG may be used to make emergency payments over a period of up to three months to the provider of such items or services on behalf of an individual or family.

Based on HUD's experience, low- and moderate-income families impacted by disasters have had an immediate need for short-term rental assistance, mortgage assistance, utility assistance, food, clothing, and similar services.

To provide additional relief to families impacted by disasters, HUD waives 24 CFR 1003.207(b)(4) to the extent necessary to allow ICDBG grant funds to be used to provide emergency payments for low- and moderate-income individuals or families impacted by a disaster. These grant funds may be used for items such as food, medicine, clothing, and other necessities, as well as rental, mortgage, and utility assistance, without regard for the three-month limitation in 24 CFR 1003.207(b)(4), but for a period not to exceed six months, unless further approved in writing by HUD on a case-by-case basis.

ICDBG grantees may establish lines of credit with third party providers ( e.g., grocery stores) on behalf of specific beneficiary families, provided all expenses can be properly documented and all ICDBG funds used for this purpose are expended on eligible activities. In all cases, ICDBG grantees must ensure that proper documentation is maintained to ensure that all costs incurred are eligible. ICDBG grantees using this waiver flexibility must document, in their policies and procedures, how they will determine the necessary and reasonable amount of assistance to be provided.

This waiver allowing for emergency payments for up to six months under 24 CFR 1003.207(b)(4) is effective for a period of one year starting from the date that the ICDBG grantee first notifies HUD that it intends to use this waiver flexibility. After the one-year period expires, emergency payments will once again be limited to a period of up to three months.

2. Suspension of Public Services Cap (Section 105(a)(8) of the Housing and Community Development Act of 1974 (HCDA), as Amended (42 U.S.C. 5305), 24 CFR 1003.201(e))

Section 105(a) of the HCDA and 24 CFR 1003.201(e) provide that the amount of ICDBG funds used for public services may not exceed 15 percent of the ICDBG grant.

Following a disaster, HUD's experience has been that communities often need to provide additional support services related to the effects of the disaster on individuals and families. Anticipated needed services include, but are not limited to, the provision of food and bottled water, emergency shelter, case management, and related services to help residents in the declared-disaster areas until long-term recovery resources become available. The current 15 percent cap on public services may be an unnecessary barrier ( printed page 35242) to Tribal communities trying to recover from a disaster.

Section 122 of the HCDA (42 U.S.C. 5321) authorizes HUD to suspend certain ICDBG statutory requirements to assist grantees in addressing the damage in areas for which the President has declared a disaster under Title IV of the Stafford Act. To ensure that ICDBG grantees can provide necessary public services to families impacted by a disaster, HUD suspends the provision of section 105(a)(8) of the HCDA and waives 24 CFR 1003.201(e) to the extent necessary to permit ICDBG grantees to exceed the 15 percent cap on public service expenditures. This waiver is available to ICDBG grantees located in a PDD and to ICDBG grantees providing assistance to impacted families located in a PDD. An ICDBG grantee carrying out public service activities under this waiver should document that families receiving assistance were impacted by the disaster and must ensure that all costs are necessary and reasonable to recover from the disaster. The grantee should also document its use of this waiver flexibility in its annual status and evaluation report that it submits under 24 CFR 1003.506 and describe each activity so the activity is clearly distinguishable as a designated disaster recovery activity.

This waiver of the public services cap is effective for a period of one year starting from the date that the ICDBG grantee first notifies HUD that it intends to use this waiver flexibility.

3. New Housing Construction (Section 105(a) of the HCDA, 24 CFR 1003.207(b)(3))

Under section 105(a) of the HCDA and 24 CFR 1003.207, new housing construction is generally ineligible unless carried out by a Community-Based Development Organization (CBDO), with a few exceptions.

Based on HUD's experience, PDDs often cause damage and destruction to a large number of housing units within the declared-disaster area. Allowing Tribes to use ICDBG funds for new housing construction enables them to replace affordable housing units that were lost as a result of the disaster.

To expedite the rebuilding process, HUD suspends the requirements of section 105(a) of the HCDA, as authorized by section 122 of the HCDA, and waives 24 CFR 1003.207(b)(3) to the extent necessary to permit grantees to directly use ICDBG funds for new housing construction activities to address damage from the disaster, provided that such activities are reasonable and necessary for disaster recovery. Grantees must document how the new construction activity addresses disaster damage. In addition to the flexibility provided by the suspension of the statutory requirements, grantees are encouraged to take advantage of the reconstruction provisions at section 105(a)(4) of the HCDA.

This waiver allowing the use of ICDBG funds for new housing construction is effective for a period of one year starting from the date that the ICDBG grantee first notifies HUD that it intends to use this waiver flexibility.

C. 24 CFR Part 1006 (NHHBG)

1. Assistance to Middle-Income Families Impacted by Disaster (24 CFR 1006.301(a))

24 CFR 1006.301(a) describes families eligible for NHHBG assistance as low-income Native Hawaiian families who are eligible to reside on the Hawaiian homelands. Section 809(a)(2) of NAHASDA limits assistance for families who are not low-income to homeownership activities, as approved by HUD, to address a housing need that cannot be reasonably met without that assistance. Section 1006.301(d) requires the Department of Hawaiian Home Lands (DHHL) to have written policies governing eligibility, admission, and occupancy of families for NHHBG-assisted housing.

Based on HUD's experience, PDDs have devastated and displaced Native Hawaiian families in a community of all incomes, make housing uninhabitable, damage community infrastructure, and resulted in loss of life and property. DHHL may find it in the public interest to aid non-low-income families that are displaced due to a disaster by using NHHBG funds to deliver assistance such as providing temporary mortgage assistance; providing temporary rental assistance on or off the Hawaiian homelands; housing such families in hotels, motels, or similar facilities; providing such families with necessary relocation assistance, and more. To help alleviate the impact of disasters on Native Hawaiian communities, HUD waives 24 CFR 1006.301(a) to allow DHHL more flexibility to provide NHHBG assistance to families that are middle-income (defined as 120 percent of AMI), provided the assistance is for homeownership activities (which may include short-term rental assistance to displaced homeowners), temporary in nature, and for families impacted by the disaster and there is a need for housing for such family that cannot reasonably be met without such assistance.

Under this waiver, Native Hawaiian families impacted by PDD can automatically be served provided their household income does not exceed 120 percent of AMI, there is no duplication of benefits, and all eligible criteria in this waiver are met. All assistance must be temporary in nature. For instance, such families may receive temporary rental assistance that is time-limited pursuant to DHHL's policies but may not receive permanent tenant-based rental assistance with no specified end date. DHHL must ensure the NHHBG assistance provided does not result in a duplication of benefits. For example, DHHL should not pay for costs that are already covered by private insurance or other Federal or State funds or programs. Further, when providing this assistance, DHHL must maintain records documenting that all these criteria were met at the time that such assistance was provided. If it chooses to use the flexibilities outlined in this waiver, DHHL should update its written policies to allow middle-income Native Hawaiian families who are impacted by disasters covered by a PDD to be considered eligible for NHHBG homeownership assistance and include a definition for `temporary' assistance.

2. Income Verification (24 CFR 1006.320)

24 CFR 1006.320 requires DHHL to have written policies regarding tenant and homebuyer selection and criteria related to eligibility for NHHBG assistance. Based on HUD's experience, families whose homes were damaged or destroyed by the disaster often lack documentation of income. DHHL may modify its policy and procedures to streamline income verification and documentation requirements for families displaced by PDDs by allowing income self-certification through an email with a self-certification form signed by the family. This waiver applies only to families impacted by PDDs whose income documentation was destroyed or made difficult to access by the disaster.

This waiver of income verification requirements under 24 CFR 1006.320 is effective for a period of six months starting from the date that DHHL first notifies HUD that it intends to use this waiver flexibility. After the six months expire, all income verifications must comply with standard requirements.

II. Instructions

To use the waivers or flexibilities, grantees must provide notification in writing, preferably by email, to the Administrator in the Office of Native American Programs (ONAP) Area Office serving their area before the grantee anticipates using the waiver or ( printed page 35243) flexibility. The written notification should include the following details:

(a) Requestor's Tribe/TDHE/DHHL, name, title, and contact information;

(b) Presidentially declared major disaster area(s) where the waiver(s) will be used;

(c) Date on which the grantee anticipates the first use of the waiver or flexibility, and its expected duration (which must include an end date); and

(d) A list of the waivers and flexibilities the grantee will use.

III. Additional Suspensions and Waivers

An IHBG, ICDBG, or NHHBG grantee within in a PDD, or operating in an area covered by a PDD, may request other suspensions or waivers of a HUD requirement not listed in Section I of this notice. HUD will only consider such suspension or waiver requests subject to statutory limitations and pursuant to 24 CFR 5.110.

IV. Period of Use for Waivers and Flexibilities

Waivers and flexibilities provided in this notice will remain available to grantees provided the grantee is using the waivers or flexibilities in response to the PDD or as part of the recovery process effort. HUD recommends that grantees clearly document the need for each waiver and flexibility in their records and ensure that the specific time period for which the grantee will use the waivers and flexibilities, specified in its written notification to HUD, described in Section II, is reasonably set and tied to the response and recovery effort. If a grantee finds a need to extend the period for which it will use a waiver or flexibility beyond the end date initially set by the grantee in its initial written notification to aid in its ongoing recovery effort, the grantee should send HUD written notification of its intent to extend the end date. The request must also demonstrate to HUD's satisfaction that the new time period is reasonably set and tied to the response and recovery effort.

V. Finding of No Significant Impact

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

The FONSI is available for public inspection between 8 a.m. and 5 p.m. Eastern Time weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security measures at HUD Headquarters, an advance appointment to review the docket file must be scheduled by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Hearing or speech-impaired individuals may access this number through TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).

VI. Paperwork Reduction Act

The information collections referenced in this notice have been approved by OMB pursuant to the Paperwork Reduction Act under, OMB Control Numbers 2501-0044, 2577-0191, 2577-0200, and 2577-0218.

91 FR 35240