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Notice of Program Rules, Waivers, and Alternative Requirements Under the CARES Act for Community Development Block Grant Program Coronavirus Response…

Summary

A notice from the U.S. Department of Housing and Urban Development (HUD) Office of Community Planning and Development setting out program rules, waivers and alternative requirements for Community Development Block Grant funds under the CARES Act (CDBG–CV funds) and for annual formula CDBG grants awarded in fiscal years 2019 and 2020. It was published in the Federal Register on August 20, 2020 (Vol. 85, No. 162) and is applicable August 7, 2020. Of the $5 billion in CDBG–CV funds made available by the CARES Act, HUD must allocate up to $2 billion using the formula it used for fiscal year 2020 CDBG grants, and it will use $10,000,000 for technical assistance. The CARES Act flexibilities summarized in the notice include letting grantees reimburse allowable costs of eligible activities and eliminating the public services cap for coronavirus-related activities.

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Cite this document

“Notice of Program Rules, Waivers, and Alternative Requirements Under the CARES Act for Community Development Block Grant Program Coronavirus Response….” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-of-program-rules-waivers-and-alternative-requirements-under-the-1f72417a3e/, SHA-256 cea905487bb5b352477f5c7f7ae0e868087dec9de0e0ce03a42369713bf0fb1c.

Full text

                                                                                Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                                                51457

                                               • N–SUMHSS, an annual census of                            of both mental health treatment                                 facility listing on a continuous basis in
                                            substance use and mental health                               facilities and substance use treatment                          2021, 2022 and 2023. Also included in
                                            treatment facilities which collects                           facilities.                                                     this request is the Between Cycle N–
                                            descriptive data on the location, scope                          The information in N–SUMHSS and                              SUMHSS data collection (N–SUMHSS
                                            of services provided, and operational                         I–BHS is needed to assess the nature                            BC), to be conducted between annual
                                            characteristics of all known substance                        and extent of these resources, to identify                      surveys to collect information on new
                                            use and mental health treatment                               gaps in services, and to provide a                              facilities for inclusion in the Treatment
                                            facilities in the United States and                           database for treatment referrals.                               Locator. N–SUMHSS BC use is an
                                            jurisdictions, and on utilization of                             The request for OMB approval will                            abbreviated N–SUMHSS survey
                                            services by means of a single-day count                       include a request to conduct the N–                             questionnaire.
                                            of clients in treatment; and                                  SUMHSS survey which includes facility                             The estimated annual burden for the
                                               • I–BHS data collection activities                         characteristics and services and one-day                        I–BHS and BHSIS activities is as
                                            associated with updating the inventory                        client counts and to update the I–BHS                           follows:

                                                                                                    Responses
                                               Type of respondent                 Number of                                      Total           Hours per               Total burden                                Total hour
                                                                                                        per                                                                                  Wage rate
                                                  and activity                   respondents                                  responses          response                   hours                                       cost
                                                                                                    respondent

                                            States:
                                            I–BHS Online 1 .............                   56                         75             4,200                    0.08                336                       $23           $7,728

                                                 State Subtotal .......                    56     ........................           4,200    ........................            336     ........................         7,728
                                            Facilities:
                                            I–BHS application 2 ......                    800                           1              800                     0.08                64                   19.40              1,242
                                            Augmentation screener                       1,300                           1            1,300                     0.08               104                   19.40              2,018
                                            N–SUMHSS question-
                                              naire (either SU or
                                              MH) ...........................          32,000                           1          32,000                     0.67             21,333                   47.95          1,022,917
                                            N–SUMHSS (both SU
                                              and MH) ....................              5,000                           1            5,000                    1.17              5,833                   47.95            279,692
                                            N–SUMHSS BC ...........                     1,000                           1            1,000                    0.58                580                   47.95             27,811

                                                  Facility Subtotal ....               40,100     ........................         40,100     ........................         27,914     ........................     1,333,680

                                                        Total ...............          40,156     ........................         44,300     ........................         28,250     ........................     1,341,408
                                               1 States use the I–BHS Online system to submit information on newly licensed/approved facilities and on changes in facility name, address,
                                            status, etc.
                                              2 New facilities complete and submit the online I–BHS application form in order to get listed on the Inventory.




                                               Written comments and                                       DEPARTMENT OF HOUSING AND                                       CDBG–CV and CDBG grants. This notice
                                            recommendations for the proposed                              URBAN DEVELOPMENT                                               also describes conforming waivers and
                                            information collection should be sent                                                                                         alternative requirements for other
                                                                                                          [Docket No. FR–6218–N–01]                                       formula programs included in the
                                            within 30 days of publication of this
                                            notice to www.reginfo.gov/public/do/                          Notice of Program Rules, Waivers, and                           consolidated planning regulations in 24
                                            PRAMain. Find this particular                                 Alternative Requirements Under the                              CFR part 91.
                                            information collection by selecting                           CARES Act for Community                                         DATES: Applicable: August 7, 2020.
                                            ‘‘Currently under 30-day Review—Open                          Development Block Grant Program                                 FOR FURTHER INFORMATION CONTACT:
                                            for Public Comments’’ or by using the                         Coronavirus Response Grants, Fiscal                             Jessie Handforth Kome, Director, Office
                                            search function.                                              Year 2019 and 2020 Community                                    of Block Grant Assistance, Office of
                                                                                                          Development Block Grants, and for                               Community Planning and Development,
                                            Carlos Graham,
                                                                                                          Other Formula Programs                                          Department of Housing and Urban
                                            Social Science Analyst.
                                                                                                          AGENCY: Office of the Assistant
                                                                                                                                                                          Development, 451 7th Street SW, Room
                                            [FR Doc. 2020–18220 Filed 8–19–20; 8:45 am]
                                                                                                          Secretary for Community Planning and                            7282, Washington, DC 20410, telephone
                                            BILLING CODE 4162–20–P
                                                                                                          Development, HUD.                                               number 202–708–3587. Persons with
                                                                                                                                                                          hearing or speech impairments may
                                                                                                          ACTION: Notice.
                                                                                                                                                                          access this number via TTY by calling
                                                                                                          SUMMARY: This notice describes the                              the Federal Relay Service at 800–877–
                                                                                                          program rules, statutory and regulatory                         8339. Facsimile inquiries may be sent to
                                                                                                          waivers, and alternative requirements                           Ms. Kome at 202–708–0033. Except for
                                                                                                          applicable to supplemental Community                            the ‘‘800’’ number, these telephone
                                                                                                          Development Block Grant (CDBG) funds                            numbers are not toll-free. Questions
                                                                                                          made available to prevent, prepare for,                         regarding the CDBG–CV program may
                                                                                                          and respond to coronavirus (CDBG–CV                             be submitted to




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                                                                                                          funds) and to annual formula CDBG                               CPDQuestionsAnswered@hud.gov.
                                                                                                          grants awarded in fiscal years 2019 and                         Interested parties may also visit HUD’s
                                                                                                          2020. Except as otherwise described in                          website at https://www.hud.gov/
                                                                                                          this notice and the CARES Act, the                              program_offices/comm_planning for
                                                                                                          statutory and regulatory provisions                             updated information and resources.
                                                                                                          governing the CDBG program apply to                             SUPPLEMENTARY INFORMATION:



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                                            51458                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            Table of Contents                                          This notice is broken into sections.                 • Allows states and local
                                            I. Overview and Background
                                                                                                    Section II provides a general overview                governments to reimburse allowable
                                            II. Summary of Special Authorities Under the            of the CDBG–CV and CDBG program                       costs of eligible activities regardless of
                                                  CARES Act                                         flexibilities provided by the CARES Act.              the date the costs were incurred.
                                               II.A. Program Modifications in the CARES             Section III describes the allocations,
                                                                                                                                                          II.B. Authority To Grant Waivers and
                                                  Act                                               grant procedures, program flexibilities,
                                               II.B. Authority To Grant Waivers and
                                                                                                                                                          Alternative Requirements
                                                                                                    waivers, and alternative requirements
                                                  Alternative Requirements                          applicable to CDBG–CV grants. Section                    The CARES Act authorizes the
                                            III. CDBG–CV Grants                                     IV describes the program flexibilities,               Secretary to waive, or specify alternative
                                               III.A. Allocations of CDBG–CV Funds                  waivers, and alternative requirements                 requirements for, any provision of any
                                               III.A.1. First Allocation                                                                                  statute or regulation that the Secretary
                                               III.A.2. Additional Allocations
                                                                                                    that apply to fiscal years 2019 and 2020
                                                                                                    CDBG grants used to prevent, prepare                  administers in connection with the use
                                               III.A.3. Reallocation.
                                               III.B. CDBG–CV Grant Rules, Waivers, and             for, and respond to coronavirus or that               of CDBG–CV grants, fiscal year 2020
                                                  Alternative Requirements                          affect other aspects of program                       CDBG grants, and fiscal year 2019 CDBG
                                               III.B.1. General Grant Requirements                  administration. Other sections contain                grants to prevent, prepare for, and
                                               III.B.2. Responsible Use of CARES Act                administrative information related to                 respond to coronavirus or that affect
                                                  Funds                                             this notice.                                          other aspects of program administration
                                               III.B.3. Overview of Process To Receive                                                                    for the fiscal year 2019 and 2020 CDBG
                                                  CDBG–CV Grants                                    II. Summary of Special Authorities                    grants, except for requirements related
                                               III.B.4. Application for Grant Funds and             Under the CARES Act                                   to fair housing, nondiscrimination, labor
                                                  Citizen Participation
                                                                                                       The CARES Act modifies some CDBG                   standards, and the environment, upon a
                                               III.B.5. Allowable Costs, Eligible Activities
                                                  and National Objectives                           program rules and authorizes the                      finding by the Secretary that any such
                                               III.B.6. Other Program Requirements                  Secretary of HUD to grant waivers and                 waivers or alternative requirements are
                                               III.B.7. Period of Performance, Timeliness,          alternative requirements. Accordingly,                necessary to expedite or facilitate the
                                                  and Closeout                                      this notice describes how requirements                use of such amounts to prevent, prepare
                                               III.B.8. Reporting                                   of the CDBG program are modified for                  for, and respond to coronavirus.
                                               III.B.9. Duplication of Benefits                     CDBG–CV grants, fiscal year 2020 CDBG                 Additional waiver authority is provided
                                               III.B.10 Citizenship Requirements                    grants under the Department of Housing                in 24 CFR 5.110 and 91.600. In
                                            IV. Fiscal Year 2019 and Fiscal Year 2020                                                                     accordance with these provisions, HUD
                                                  CDBG Grants
                                                                                                    and Urban Development Appropriations
                                                                                                    Act, 2020 (Pub. L. 116–94), and fiscal                may waive regulatory provisions
                                               IV.A. General Requirements
                                               IV.B. Flexibilities, Waivers, and                    year 2019 CDBG grants under the                       (subject to statutory limitations) for
                                                  Alternative Requirements                          Department of Housing and Urban                       good cause.
                                               IV.B.1. Timeliness                                   Development Appropriations Act, 2019                     As required by the CARES Act, the
                                               IV.B.2. Consolidated Plan, Citizen                   (Pub. L. 116–6). For ease of reference,               Secretary has considered the waivers
                                                  Participation, and CAPER                          citations in this notice include                      and alternative requirements in this
                                               IV.B.3. Flexibilities that Apply to                  parentheticals indicating whether a                   notice and finds that there is good cause
                                                  Coronavirus-Related Activities.                   CDBG program statute or regulation                    for each and that each is necessary to
                                               IV.B.4. Provisions That Do Not Apply to                                                                    expedite or facilitate the use of grant
                                                  FY 19 and FY 20 Grants.
                                                                                                    applies to entitlement grants, state
                                                                                                    grants, insular area grants, or grants to             funds to prevent, prepare for, and
                                            I. Overview and Background                              nonentitlement counties in Hawaii.                    respond to coronavirus.
                                               On January 21, 2020, the Centers for                 Where citations do not include Hawaii                 III. CDBG–CV Grants
                                            Disease Control and Prevention (CDC)                    counties or insular areas, the additional
                                                                                                    citation is not necessary because the                    This section describes the CDBG–CV
                                            confirmed the first case in the United                                                                        allocations to states and units of general
                                            States of a coronavirus known by                        cited entitlement CDBG regulation
                                                                                                    applies to insular areas and Hawaii                   local government (including insular
                                            several names, including novel                                                                                areas), the process to access grant funds,
                                            coronavirus, and SARS–CoV–2, and                        counties in addition to entitlement
                                                                                                    grantees.                                             and the rules, waivers, and alternative
                                            which causes the disease commonly                                                                             requirements that apply to CDBG–CV
                                            referred to as COVID–19. On March 27,                   II.A. Program Modifications in the                    grants.
                                            2020, President Trump signed the                        CARES Act
                                            Coronavirus Aid, Relief, and Economic                                                                         III.A. Allocations of CDBG–CV Funds
                                            Security Act (Pub. L. 116–136) (CARES                      The Community Development Fund
                                                                                                                                                             Of the $5 billion made available by
                                            Act). The CARES Act makes available                     heading in title XII of Division B of the
                                                                                                                                                          the CARES Act, HUD will use
                                            $5 billion in CDBG coronavirus                          CARES Act modifies some CDBG
                                                                                                                                                          $10,000,000 to make technical
                                            response (CDBG–CV) funds to prevent,                    program requirements to provide
                                                                                                                                                          assistance awards to provide an
                                            prepare for, and respond to coronavirus.                immediate support for coronavirus
                                                                                                                                                          immediate increase in capacity building
                                            In the CARES Act and this notice, the                   efforts. The modifications are described
                                                                                                                                                          and technical assistance to support the
                                            term ‘‘coronavirus’’ means SARS–CoV–                    in more detail in Section III, and are the
                                                                                                                                                          use of CDBG–CV grants and CDBG
                                            2 or another coronavirus with pandemic                  following:
                                                                                                                                                          grants to prevent, prepare for, and
                                            potential.                                                 • Permits a public comment period of               respond to coronavirus.
                                               The nation faces significant public                  no less than 5 days when citizen                         The remaining funds will be allocated
                                            health and economic challenges related                  participation is required.                            as described in sections III.A.1. and
                                            to this respiratory disease. To address                    • Permits grantees to develop                      III.A.2.




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                                            these challenges, CDBG–CV and CDBG                      expedited citizen participation
                                            grants are a flexible source of funding                 procedures and to hold virtual public                 III.A.1. First Allocation
                                            that can be used to pay costs that are not              hearings when necessary for public                       The CARES Act requires HUD to
                                            covered by other sources of assistance,                 health reasons.                                       allocate up to $2 billion in CDBG–CV
                                            particularly to benefit persons of low                     • Eliminates the public services cap               funds using the same formula that it
                                            and moderate income.                                    for coronavirus-related activities.                   used to allocate fiscal year 2020 CDBG


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                          51459

                                            grants pursuant to section 106 of the                     HUD will publish additional third                   III.B.1. General Grant Requirements
                                            Housing and Community Development                       round allocations and a description of                   CDBG–CV grants are subject to the
                                            Act of 1974 (42 U.S.C. 5306). HUD made                  the allocation formulas on HUD’s                      requirements of the CARES Act, the
                                            this first CDBG–CV allocation on April                  website at https://www.hud.gov/                       authorities and conditions imposed on
                                            2, 2020, 24 days before the 30-day                      program_offices/comm_planning/                        fiscal year 2020 CDBG grants, and the
                                            allocation deadline in the CARES Act,                   budget/fy20/ and will provide a link to               mandatory provisions of this notice and
                                            in the amount of $2 billion. The                        this site in any press release announcing             waivers and alternative requirements.
                                            allocations are available on HUD’s                      an allocation.                                        Except as otherwise described, grantees
                                            website at https://www.hud.gov/
                                                                                                    III.A.3. Reallocation                                 must comply with statutory and
                                            program_offices/comm_planning/
                                                                                                                                                          regulatory provisions governing the
                                            budget/fy20/.                                              Under Section 106 of the Housing and               CDBG program. These include
                                            III.A.2. Additional Allocations                         Community Development Act of 1974                     regulations at: 24 CFR part 570 subpart
                                                                                                    (HCD Act) (42 U.S.C. 5306), HUD                       I (states); 24 CFR part 570 subparts A,
                                               The CARES Act requires HUD to                        reallocates annual formula CDBG funds
                                            make a second round of CDBG–CV                                                                                C, D, E, F, J, K, and O for CDBG
                                                                                                    that cannot be distributed to grantees                (entitlements, nonentitlement Hawaii
                                            allocations within 45 days of enactment                 when it allocates the next fiscal year’s
                                            of the CARES Act. HUD is required to                                                                          counties and insular areas).
                                                                                                    appropriation of annual formula CDBG                     To facilitate the use of CDBG–CV
                                            make this allocation in the amount of $1                funding. Given the immediate need for
                                            billion directly to states and insular                                                                        funds in accordance with the grant
                                                                                                    coronavirus assistance, the Department                requirements, HUD is imposing an
                                            areas to prevent, prepare for, and                      is specifying the following alternative
                                            respond to coronavirus within the state                                                                       alternative requirement that the
                                                                                                    requirement to sections 106I and (d)(3)I              definitions of CDBG funds in 24 CFR
                                            or insular area. HUD made this second                   (42 U.S.C. 5306I and 5306(d)(3)I), and
                                            round of CDBG–CV allocations on May                                                                           570.3 (entitlements) and 24 CFR
                                                                                                    the reallocation provisions of 24 CFR                 570.481(a)(2) (states) include CDBG–CV
                                            11, 2020, in the amount of $1 billion.                  570.4(a), 570.420I, 570.429(d)(2), and
                                            The allocations and methodology are                                                                           funds. This alternative requirement
                                                                                                    570.442(b), to expedite the use of any                applies the requirements in 24 CFR part
                                            available on HUD’s website at: https://
                                                                                                    funds that may become available for                   570 to the use of CDBG–CV funds,
                                            www.hud.gov/program_offices/comm_
                                                                                                    reallocation.                                         except as modified by rules, waivers,
                                            planning/budget/fy20/. The second
                                            CDBG–CV allocations were based on                          If a jurisdiction receiving an                     and alternative requirements applicable
                                            factors identified in the CARES Act:                    allocation of CDBG–CV funds fails to                  to CDBG–CV grants.
                                            Public health needs, risk of transmission               apply for funding in accordance with                     CDBG–CV grant agreements will
                                            of coronavirus, number of coronavirus                   the requirements of this notice by                    impose requirements by incorporating
                                            cases compared to the national average,                 August 16, 2021 (the deadline                         program rules, waivers, and alternative
                                            economic and housing market                             established by the CARES Act) or HUD                  requirements (including those
                                            disruptions, and other factors, as                      is unable to distribute funds to a grantee            published in memoranda, in this and
                                            determined by the Secretary, using best                 for another reason, HUD may notify the                any future notices).
                                            available data.                                         jurisdiction of the cancellation of all or               Grantees should not assume that their
                                               The CARES Act authorized HUD to                      part of its allocation amount. Funds that             normal CDBG funding distribution
                                            allocate the remaining $2 billion in                    are not awarded to jurisdictions under                procedures are adequate to swiftly
                                            CDBG–CV funds, minus the $10 million                    the formulas described in paragraphs                  distribute and use CDBG–CV grants. For
                                            set aside for technical assistance, on a                III.A.1. and III.A.2. may be reallocated              example, if a grantee’s existing policies
                                            rolling basis. The CARES Act provides                   based on factors identified in the                    mandate lengthy processes to select
                                            that the remaining $2 billion shall be                  CARES Act, as determined by the                       activities or complete procurements,
                                            distributed directly to states or units of              Secretary. If made, reallocations will be             grantees should try to expedite actions
                                            general local government, at the                        published on HUD’s website.                           with local waiver authorities or
                                            discretion of the Secretary, according to               III.B. CDBG–CV Grant Rules, Waivers,                  emergency procedures that may be
                                            a formula based on factors to be                        and Alternative Requirements                          available without state or local
                                            determined by the Secretary,                                                                                  rulemaking. In addition, urban counties
                                            prioritizing risk of transmission of                       This section describes program                     that normally distribute CDBG funds on
                                            coronavirus, number of coronavirus                      flexibilities in the CARES Act and                    a proportional basis among all
                                            cases compared to the national average,                 provides waivers and alternative                      participating jurisdictions should
                                            and economic and housing market                         requirements to expedite or facilitate the            consider whether their normal
                                            disruptions resulting from coronavirus.                 use of CDBG–CV funds. The rules,                      procedures would result in funding
                                            The District of Columbia is defined as                  waivers, and alternative requirements                 awards that are too small to be used
                                            a metropolitan city under the Housing                   described in this section only apply to               expeditiously and productively by the
                                            and Community Development Act of                        CDBG–CV grants (as specified in this                  participating jurisdictions.
                                            1974 and not as a state or insular area.                section) and in some cases to fiscal year
                                            As such, it was not eligible for funding                2019 and fiscal year 2020 CDBG grants                 III.B.2. Responsible Use of CARES Act
                                            under the Round 2 $1 billion allocation.                (as specified in section IV) and program              Funds
                                            To ensure national geographic coverage                  income (as specified in sections                         CDBG–CV funds are subject to
                                            in Round 2, HUD made an allocation                      III.B.5.(f)(iv) and III.B.6.(a)). The CARES           additional measures designed to prevent
                                            from the third round of funding to the                  Act statutory flexibilities, waivers, and             fraud, waste, and abuse. HUD will
                                            District of Columbia simultaneously                     alternative requirements do not apply to              conduct regular oversight and




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                                            with the second round because the                       other sources of CDBG funds (even if                  monitoring activities to determine that
                                            District met the geographic criteria for                used in conjunction with CDBG–CV                      use of CDBG–CV funds is consistent
                                            the third round of allocations and was                  funds, fiscal year 2019 CDBG funds, or                with grant requirements and limited to
                                            the only geographic area in the nation                  fiscal year 2020 CDBG funds) except as                the necessary and reasonable costs of
                                            that was not covered by the second                      otherwise described in section                        activities to prevent, prepare for, and
                                            round of allocations.                                   IV.B.3.(b).                                           respond to coronavirus. Measures to


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                                            51460                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            increase transparency and                               does not preclude grantees from                       from HUD the Authority to Use Grant
                                            accountability include:                                 applying by submitting a FY 2020                      Funds (AUGF) form and certification.
                                               • Regular reporting on the use of                    Action Plan that includes the CDBG–CV
                                            CDBG–CV funds, including reporting                                                                            III.B.4. Application for Grant Funds and
                                                                                                    funds. If the grantee chooses to include
                                            that may be required by the CARES Act                                                                         Citizen Participation
                                                                                                    CDBG–CV grant funds in its annual
                                            to conduct audits and reviews of                        action plan for FY 2020 funds, the                       This section III.B.4. describes the
                                            programs, operations, and expenditures                  grantee must comply with action plan                  CDBG program flexibilities in the
                                            relating to funds under the CARES Act                   submission procedures in 24 CFR part                  CARES Act and additional waivers and
                                            and the Coronavirus response (see                       91 (including consultation and a public               alternative requirements that HUD
                                            section III.B.8. for information on                     hearing), as modified by the waiver and               granted to facilitate or expedite the
                                            reporting requirements); and                            alternative requirements in paragraph                 process to amend consolidated plans
                                               • a requirement that grantees prevent                III.B.4.(a)(iv), which apply the CARES                and apply for CDBG–CV grants.
                                            the duplication of benefits that is caused              Act citizen participation flexibilities to
                                            when a person, household, business, or                  all consolidated plan formula grant                   III.B.4.(a) Expedited Citizen
                                            other entity receives financial assistance              programs.                                             Participation and Virtual Hearings
                                            from multiple sources for the same                         The following procedures apply                        The CARES Act permits grantees to
                                            purpose, and the total assistance is more               regardless of whether the grantee                     adopt expedited citizen participation
                                            than the total need (see section III.B.9.               applies for CDBG–CV funds through an                  procedures and hold virtual hearings for
                                            for information on duplication of                       action plan or action plan substantial                consolidated plan submissions for
                                            benefits).                                              amendment:                                            CDBG–CV funds and for CDBG grants
                                                                                                       • Rather than wait to apply until                  for fiscal years 2019 and 2020. Section
                                            III.B.3. Overview of Process To Receive
                                                                                                    HUD allocates all available CDBG–CV                   III.B.4.(a)(iii) includes a corollary waiver
                                            CDBG–CV Grants
                                                                                                    funds, HUD recommends that grantees                   and alternative requirement to permit
                                               On April 2, 2020, HUD published the                  apply as soon as possible for CDBG–CV                 states to extend these flexibilities to
                                            first round of CDBG–CV allocations on                   funds that HUD has allocated. Grantees                units of general local government and
                                            the hud.gov website and notified                        receiving subsequent allocations can
                                            jurisdictions of their allocation                                                                             insular areas. Section III.B.4.(a)(iv)
                                                                                                    make substantial amendments to apply                  includes a corollary waiver and
                                            amounts. On April 9, 2020, John Gibbs,                  for subsequent allocation amounts after
                                            Acting Assistant Secretary for                                                                                alternative requirement extending these
                                                                                                    they are announced.                                   flexibilities to other consolidated plan
                                            Community Planning and Development,                        • All grantees may adopt and use
                                            issued a memorandum with the subject,                                                                         formula programs.
                                                                                                    expedited procedures to draft, propose,
                                            ‘‘CARES Act Flexibilities for CDBG                      modify, or amend consolidated plans for                  III.B.4.(a)(i) Citizen Participation,
                                            Funds Used to Support Coronavirus                       CDBG–CV and fiscal year 2019 and 2020                 Public Notice and Comment Period. The
                                            Response and plan amendment waiver’’                    CDBG grants as described in section                   CARES Act authorizes a CDBG–CV
                                            (‘‘April 9 memorandum’’), available at                  III.B.4. These expedited procedures                   grantee to adopt and utilize expedited
                                            https://www.hud.gov/sites/dfiles/CPD/                   amend the grantee’s citizen                           procedures to prepare, propose, modify,
                                            documents/CARES-Act-Flexibilities-                      participation plan and require it be                  or amend its consolidated plan,
                                            CDBG-Funds-Used-Support-                                published for no less than 5 calendar                 notwithstanding sections 104(a)(2),
                                            Coronavirus-Response.pdf. The                           days to solicit public comment.                       (a)(3), and (c) of the HCD Act (42 U.S.C.
                                            memorandum advised grantees to                          Expedited procedures may include                      5304(a)(2), (a)(3), and (c)) and section
                                            amend or prepare consolidated plan                      virtual hearings, as described in section             105 of the Cranston-Gonzalez National
                                            submissions for CDBG–CV grants as                       III.B.4.(a)(ii).                                      Affordable Housing Act (NAHA, at 42
                                            soon as possible. Grantees may have                        • The grantee must publish its                     U.S.C. 12705). The expedited
                                            partially or fully completed the                        application for CDBG–CV funds                         procedures may permit virtual hearings,
                                            application process before HUD                          (whether through a new action plan or                 as described in section III.B.4.(a)(ii),
                                            publishes this notice.                                  action plan substantial amendment) for                whenever a public hearing is required
                                               The April 9 memorandum also                          no less than 5 calendar days to solicit               by 24 CFR 91.105 (entitlements), 91.115
                                            granted waivers to expedite this process                public comment. The comment period                    (states), 570.431 (Hawaii counties),
                                            of applying for CDBG–CV funds by                        can run concurrently with the comment                 570.441 (insular areas), or by the
                                            permitting application for a grantee’s                  period on changes to add expedited                    grantee’s citizen participation plan.
                                            share of the first $2 billion through a                 procedures to the citizen participation               Expedited procedures adopted by the
                                            substantial amendment to a grantee’s                    plan. The grantee must respond to                     grantee shall provide citizens with
                                            most recent annual action plan (the                     public comments.                                      notice and a reasonable opportunity to
                                            most recent year may be the 2019                           • The grantee must submit its                      comment of no less than 5 days.
                                            annual action plan). These waivers and                  application for CDBG–CV funds to HUD                     Expedited procedures must be
                                            alternative requirements describing the                 for review in accordance with 24 CFR                  published for no less than 5 calendar
                                            content of a substantial amendment to                   91.500. To receive a CDBG–CV grant, a                 days to solicit public comment, and
                                            add CDBG–CV allocations to the most                     grantee must also submit a SF–424, SF–                once adopted, become part of the
                                            recent annual action plan are in section                424D and the certifications at 24 CFR                 grantee’s citizen participation plan. The
                                            III.B.4.(b)(i).                                         91.225(a) and (b) or 24 CFR 91.325(a)                 public comment period for
                                               Submitting a substantial amendment                   and (b) and 24 CFR 91.425.                            incorporating expedited procedures into
                                            may speed access to grant funds because                    • HUD and the grantee will enter a                 the citizen participation plan may run
                                            consultation and public hearings are not                grant agreement and HUD will establish                concurrently with the public comment




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                                            required (although 24 CFR 570.441I(2)                   the grantee’s line of credit.                         period on a proposed CDBG–CV
                                            requires insular areas to hold a public                    • The grantee may draw funds from                  substantial amendment or other
                                            hearing for amendments, section                         the line of credit after the Responsible              proposed consolidated plan
                                            III.B.4.(a)(iii) waives this requirement                Entity completes applicable                           submissions for CDBG–CV funds and
                                            for CDBG–CV substantial amendments).                    environmental review(s) pursuant to 24                fiscal year 2019 and 2020 CDBG grants.
                                            However, the April 9 memorandum                         CFR part 58 and, as applicable, receives              Consolidated plan submissions for other


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                          51461

                                            programs are addressed in section                       aurally delivered information available               clarifying that by authorizing states to
                                            III.B.4.(a)(iv).                                        to individuals who are deaf or hard or                adopt expedited citizen participation
                                               The CARES Act modifies the annual                    hearing, and visually delivered                       procedures, the CARES Act authorized
                                            formula CDBG program requirement                        materials available to individuals who                expedited procedures and virtual public
                                            that a grantee must solicit comments                    are blind or have low vision. The type                hearings for citizen participation by
                                            from its citizens for a period of at least              of auxiliary aid or service necessary to              units of general local government that
                                            30 days before it submits a substantial                 ensure effective communication will                   receive CDBG–CV funds from a state
                                            amendment or an annual action plan to                   vary in accordance with the method of                 through a method of distribution. This
                                            HUD.                                                    communication used by the individual;                 is because 24 CFR 91.115I requires
                                               III.B.4.(a)(ii) Virtual Hearings. For as             the nature, length, and complexity of                 states to include citizen participation
                                            long as national or local health                        the communication involved; and the                   requirements for units of general local
                                            authorities recommend social distancing                 context in which the communication is                 government in its own citizen
                                            and limiting public gatherings for public               taking place. In determining what types               participation plan. Expedited
                                            health reasons, the CARES Act                           of auxiliary aids and services are                    procedures must still describe how
                                            authorizes the grantee to hold virtual                  necessary, a grantee shall give primary               units of local governments receiving
                                            hearings in lieu of in-person public                    consideration to the requests of                      funds from the state will meet the
                                            hearings for CDBG–CV grants and for                     individuals with disabilities. In order to            citizen participation requirements in 24
                                            fiscal year 2019 and 2020 CDBG grants                   be effective, auxiliary aids and services             CFR 570.486.
                                            (virtual hearings for other consolidated                should be provided in accessible                         Additionally, HUD is waiving the
                                            plan formula programs are addressed in                  formats, in a timely manner, and in such              requirement in 570.441I(2) that an
                                            section III.B.4.(a)(iv)). All virtual                   a way as to protect the privacy and                   insular area must hold a public hearing
                                            hearings held under the authority                       independence of the individual with a                 on a substantial amendment. Instead,
                                            provided by the CARES Act shall                         disability. For virtual hearings, such                HUD is imposing an alternative
                                            provide reasonable notification and                     steps should include ensuring that                    requirement to permit the insular area to
                                            access for citizens in accordance with                  information is provided on an accessible              adopt expedited requirements by
                                            the grantee’s certifications, timely                    website, that emails and other digital                modifying its citizen participation plan
                                            responses from local officials to all                   notifications are accessible, and that the            to replace the hearing if it provides
                                            citizen questions and issues, and public                application or platform used to host the              community residents with reasonable
                                            access to all questions and responses.                  hearing is also accessible. Additional                notice and an opportunity to comment
                                               Therefore, grantees may use online                   services such as audio description or                 on substantial amendments to the
                                            platforms to hold virtual hearings that                 captioning may also be needed to                      consolidated plan or annual action plan.
                                            facilitate public access to all questions               provide effective communication in a                     III.B.4.(a)(iv) Extension of CARES Act
                                            and responses and provide timely                        digital context. Helpful guidelines for               Flexibilities to All Consolidated Plan
                                            responses from local officials.                         ensuring the accessibility of web-based               Formula Programs (CDBG, CDBG–CV,
                                            Additionally, grantees must take                        and digital materials are available                   HOME, HOPWA, HTF, ESG) and Section
                                            appropriate actions to encourage the                    through the World Wide Web                            108 Loan Guarantees. The CARES Act
                                            participation of all residents, including               Consortium’s Web Accessibility                        altered consolidated plan citizen
                                            the elderly, minorities, persons with                   Initiative at https://www.w3.org/WAI/.                participation requirements for some
                                            limited English proficiency, as well as                 Examples of auxiliary aids and services               CDBG–CV grants, fiscal year 2019 and
                                            persons with disabilities, consistent                   that may be necessary when conducting                 2020 annual formula CDBG grants, and
                                            with the jurisdiction’s citizen                         hearings online can be found at 28 CFR                Emergency Solutions Grant
                                            participation plan.                                     35.104.                                               supplemental CARES Act (ESG–CV)
                                               The CARES Act does not modify                          Grantees must also take reasonable                  grants. It did not modify citizen
                                            nondiscrimination requirements.                         steps to provide meaningful access to                 participation for other annual formula
                                            Consistent with 24 CFR 91.105                           persons with limited English                          CDBG and ESG grants, Section 108 Loan
                                            (entitlements) and 91.115 (states), and                 proficiency consistent with Title VI of               Guarantees, or for HOME Investment
                                            24 CFR 570.431 (Hawaii counties) and                    the Civil Rights Act. To ascertain their              Partnerships (HOME), Housing Trust
                                            570.441 (insular areas), a jurisdiction is              obligations, grantees should conduct the              Fund (HTF), and Housing Opportunities
                                            expected to take whatever actions are                   four-factor analysis set forth in HUD’s               for Persons With AIDS (HOPWA)
                                            appropriate to encourage the                            limited English proficiency guidance                  formula programs before fiscal year
                                            participation of all its citizens in virtual            found at https://www.hud.gov/sites/                   2019.
                                            and in-person hearings, including                       documents/FINALLEP2007.PDF, which                        On April 1, 2020, HUD issued two
                                            minorities and persons with limited                     may be covered by grantees’ Language                  waivers to modify citizen participation
                                            English proficiency, as well as persons                 Assistance Plan, recognizing that the                 requirements for consolidated plan
                                            with disabilities. Whether hearings are                 use of the internet to conduct such a                 substantial amendments for CDBG, ESG,
                                            in-person or virtual, grantees must take                hearing may change the analysis. For                  HOME, HTF, and HOPWA. The first
                                            appropriate steps to ensure effective                   virtual or online hearings, such services             eliminated the 30-day minimum for the
                                            communication with persons with                         may also include translation of                       required public comment period for
                                            disabilities consistent with the                        documents and captioning or                           substantial amendments, provided that
                                            requirements of accessibility laws, such                interpretation in the appropriate                     no less than 5 days are provided for
                                            as Section 504 of the Rehabilitation Act                language(s). More information on the                  public comments on each substantial
                                            and the Americans with Disabilities Act.                four-factor analysis and other                        amendment concerning the proposed
                                            The grantee must provide appropriate                    requirements can be found at https://                 uses of CDBG, HOME, HTF, HOPWA, or




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                                            auxiliary aides and services where                      www.hud.gov/sites/documents/                          ESG funds. The second allowed grantees
                                            necessary to afford individuals with                    FINALLEP2007.PDF.                                     to determine what constitutes
                                            hearing and vision impairments an                         III.B.4.(a)(iii) Modifications to citizen           reasonable notice and opportunity to
                                            equal opportunity to access and                         participation requirements for local                  comment, given their circumstances, for
                                            participate in such hearings. These may                 governments that receive funds from                   the 2020 program year. The waivers
                                            include effective methods that make                     States and for insular areas. HUD is                  were published in a memorandum


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                                            51462                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            signed by Acting Assistant Secretary                    simplifying the process of requesting                 submissions for ESG–CV funds because
                                            John Gibbs on March 31, 2020. It is                     and obtaining federal funds available to              HUD cannot waive the minimum
                                            available at: https://www.hud.gov/sites/                the jurisdictions (60 FR 1878, published              requirements the CARES Act imposed
                                            dfiles/CPD/documents/Availability-of-                   January 5, 1995).                                     on CDBG grantees. Therefore, this
                                            Waivers-of-CPD-Grant-Program-and-                          Therefore, HUD is waiving provisions               waiver and alternative requirement does
                                            Consolidated-Plan-Requirements-to-                      at 24 CFR 91.105(b)(4), (c)(2) and (k), 24            not alter or expand the authority for
                                            Prevent-the-Spread-of-COVID-19-and-                     CFR 91.115(b)(4), (c)(2) and (i), 24 CFR              ESG grantees to omit the citizen
                                            Mitigate-Economic-Impacts-Caused-by-                    91.401, 24 CFR 570.431, 24 CFR                        participation and consultation
                                            COVID-19.pdf.                                           570.441, and 24 CFR 570.704 to the                    requirements for consolidated plan
                                               HUD is now issuing waivers and                       extent necessary to permit the following              submissions that only pertain to ESG
                                            alternative requirements to expedite                    alternative requirement: CDBG, HOME,                  CARES Act (ESG–CV) funding.
                                            procedures to modify citizen                            HTF, HOPWA, and ESG grantees may
                                            participation plans for all 2020 fiscal                 modify their citizen participation plans              III.B.4.(b) CDBG–CV Application
                                            year consolidated plan and annual                       to adopt expedited procedures that                    Content and Submission
                                            action plan submissions that pertain to                 apply when the grantees prepare,                         III.B.4.(b)(i). CDBG–CV Application
                                            ESG, HOME, HTF, and HOPWA formula                       propose, modify, or amend any                         Content, Submission, Consistency with
                                            programs. The waivers are necessary to                  consolidated plan submissions that                    Other Portions of Consolidated Plan. In
                                            effectively implement the CARES Act                     contain uses of CDBG–CV funds or uses                 the April 9 memorandum, HUD issued
                                            flexibilities offered to CDBG grantees                  of fiscal year 2019 or 2020 CDBG funds                a waiver and alternative requirement
                                            because planning and annual action                      to prevent, prepare for, and respond to               that permits a grantee to apply for
                                            plan consolidated plan submissions for                  coronavirus. The expedited procedures                 CDBG–CV funds by submitting a
                                            CDBG–CV and CDBG grants are                             must, at a minimum, provide citizens                  substantial amendment to its most
                                            inextricably linked with the                            with notice and a reasonable                          recently approved annual action plan.
                                            consolidated plan submissions for ESG,                  opportunity to comment of no less than                Grantees may also apply for CDBG–CV
                                            HOME, HTF, and HOPWA.                                   5 days.                                               funds in a future annual action plan
                                               In 1995, HUD published the                              Additionally, HUD is waiving                       submission.
                                            consolidated plan regulation at 24 CFR                  provisions at 24 CFR 91.105(b) and I, 24                 As part of the application submission,
                                            part 91. The consolidated plan replaced                 CFR 91.115(b) and I, 24 CFR 91.401, and               HUD is temporarily waiving the
                                            the following separate application and                  24 CFR 570.431, 570.441, and                          requirements (found at 42 U.S.C. 12706
                                            planning submissions: The                               570.486(a) to the extent necessary to                 and 24 CFR 91.325(a)(5) and
                                            Comprehensive Housing Affordability                     establish the following alternative                   91.225(a)(5)) that grantees certify that
                                            Strategy (CHAS), enacted by NAHA at                     requirement. For as long as national or               the housing activities to be undertaken
                                            42 U.S.C. 12701, the Community                          local health authorities recommend                    with CDBG, HOME, ESG, and HOPWA
                                            Development Plan requirements, added                    social distancing and limiting public                 funds are consistent with the strategic
                                            to the CDBG program by NAHA (42                         gatherings for public health reasons,                 plan portion of the consolidated plan.
                                            U.S.C. 5304), the CDBG final statement,                 CDBG, ESG, HOME, HTF, and HOPWA                       HUD is imposing a related alternative
                                            the HOME program description, and the                   grantees, and units of general local                  requirement that allows grantees to
                                            ESG and HOPWA applications. In 2015,                    government receiving CDBG funds from                  submit those certifications when the
                                            HUD published an interim rule that                      state or insular area CDBG grantees, may              grantee submits its next full (3–5 year)
                                            added HTF to the consolidated planning                  hold virtual hearings in lieu of in-                  consolidated plan due after the 2020
                                            regulations. States and units of general                person public hearings to fulfill public              program year. Grantees may not have
                                            local government (including insular                     hearing requirements imposed by 42                    considered the needs associated with
                                            areas) that apply for Section 108 loan                  U.S.C. 12707(a)(3) and the regulations at             CDBG–CV funds when developing their
                                            guarantees pursuant to 24 CFR 570.704                   24 CFR part 91 and 24 CFR part 570, or                current consolidated plan strategic plan
                                            may also be required to include the use                 by the grantee’s citizen participation                and needs assessment.
                                            of guaranteed loan funds in their                       plan.                                                    In conjunction, HUD is temporarily
                                            consolidated plans.                                        For each virtual hearing, a grantee                waiving 42 U.S.C. 5304I to the extent
                                               Grantees that apply for CDBG–CV or                   shall provide reasonable notification                 that it requires HUD to annually review
                                            CDBG funds as part of their 3–5 year                    and access for citizens in accordance                 grantee performance under the
                                            consolidated plan or annual action plan                 with the grantee’s certifications, timely             consistency criteria. This waiver also
                                            submissions cannot reasonably take                      responses from local officials to all                 only applies until the grantee submits
                                            advantage of the expedited CARES Act                    citizen questions and issues, and public              its next full (3–5 year) consolidated plan
                                            citizen participation requirements                      access to all questions and responses.                due after the 2020 program year.
                                            unless the other programs included in                   Therefore, grantees may use online                       Applying through a substantial
                                            these submissions are subject to the                    platforms to hold virtual hearings that               amendment to the most recent action
                                            same expedited requirements. Creating a                 provide public access to questions and                plan. If the CDBG–CV application is
                                            separate application process for CDBG–                  responses and provide timely responses                submitted as a substantial amendment
                                            CV and CDBG funds would add time                        from local officials. This alternative                to the most recent annual action plan,
                                            and complications that are likely to                    requirement is only applicable to                     the substantial amendment must
                                            delay the availability of funds and                     consolidated planning submissions                     include the CDBG–CV allocation as an
                                            undermine the purpose of the CARES                      describing the use of fiscal year 2019 or             available resource for the year. The
                                            Act provisions to expedite assistance.                  2020 annual formula funds for CDBG,                   amendment must include the proposed
                                            Further, separating CDBG planning and                   ESG, HOME, HTF, and HOPWA, or for                     use of all funds and how the funds will




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                                            applications would thwart several of the                CDBG–CV or ESG–CV funds provided                      be used to prevent, prepare for, and
                                            reasons cited for the consolidated                      under the CARES Act.                                  respond to coronavirus. To permit this
                                            planning rule, e.g., providing                             HUD cannot modify requirements for                 expedited application process, in the
                                            comprehensive information on the                        CDBG grantees to mirror the elimination               April 9 memorandum HUD waived
                                            jurisdiction that is easy to understand                 of citizen participation for substantial              statutory provisions at 42 U.S.C.
                                            and reducing paperwork and                              amendments and new consolidated plan                  12705(a)(2) to the extent they require


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                            51463

                                            updates to the housing and homeless                     hearing) apply to grantees that choose to             and the annual Action Plan for fiscal
                                            needs assessment, (24 CFR 91.205 and                    submit CDBG–CV applications by                        year 2019 and 2020 CDBG funds. This
                                            91.405), housing market analysis (24                    including CDBG–CV funds in a new                      deadline supersedes the August 16,
                                            CFR 91.210 and 91.410), and strategic                   annual action plan submission. Content                2020 deadline established by 24 CFR
                                            plan (24 CFR 91.215 and 91.415. HUD                     of action plans is described at 24 CFR                91.15 in accordance with section 116(b)
                                            also waived 24 CFR 91.220                               91.220 (entitlements), 91.320 (states),               of the HCD Act.
                                            (entitlements) and 91.320 (states), to the              and 24 CFR 570.440 (insular areas).
                                            extent those regulations limit the action                  Applying for additional CDBG–CV                    III.B.5. Allowable Costs, Eligible
                                            plan to a specific program year, to                     allocations. The waivers and alternative              Activities and National Objectives
                                            permit grantees to prepare substantial                  requirements in the April 9                              This section describes modifications
                                            amendments to their most recent annual                  memorandum apply to all allocations of                to the CDBG program requirements that
                                            action plan (including their 2019 annual                CDBG–CV funds. HUD encourages                         address allowability of costs that can be
                                            action plan).                                           grantees to apply for additional                      charged to CDBG–CV grants.
                                               In the April 9 memorandum, HUD                       allocations of CDBG–CV funds as they
                                                                                                                                                          III.B.5.(a) Use of Funds for CARES Act
                                            also issued a waiver and alternative                    are announced by submitting substantial
                                                                                                                                                          Purposes
                                            requirement to 24 CFR 91.505 to                         amendments to their most recent annual
                                            facilitate the use of the CDBG–CV funds                 action plan. Grantees are advised that an                The grantee is required to use all
                                            to the extent necessary to require                      application for an additional allocation              CDBG–CV funds for CDBG-eligible
                                            submission of the substantial                           of CDBG–CV funds should be submitted                  activities that are carried out to prevent,
                                            amendment to HUD for review in                          as a substantial amendment to the                     prepare for, and respond to coronavirus.
                                            accordance with 24 CFR 91.500, and                      annual action plan that describes the                 CDBG–CV grants cannot be used for any
                                            required that, to receive a CDBG–CV                     first CDBG–CV allocation.                             other purpose. This requirement is
                                            grant, a grantee must also submit a SF–                    An application submitted as a                      discussed more fully in section
                                            424, SF–424D, and the certifications at                 substantial amendment must include                    III.B.5.(f), which discusses eligible
                                            24 CFR 91.225(a) and (b) (entitlements)                 the CDBG–CV allocation as an available                activities.
                                            or 24 CFR 91.325(a) and (b) (states).                   resource for the year and include the                    Additionally, HUD weighed the
                                               HUD is now adding to the waivers in                  proposed use of all funds and how the                 purpose of the CARES Act to prevent,
                                            the April 9 memorandum as follows.                      funds will be used to prevent, prepare                prepare for, and respond to coronavirus
                                            The abbreviated consolidated plan                       for, and respond to coronavirus.                      with the intent of Congress expressed in
                                            regulations for insular areas at 24 CFR                    HUD strongly encourages grantees to                section 101I of the HCD Act (42 U.S.C.
                                            570.440(i) are waived to the extent                     apply for allocations through substantial             5301I) that CDBG funds not be utilized
                                            necessary to impose the same                            amendments as they are announced.                     to reduce substantially the amount of
                                            alternative requirements in the April 9,                However, grantees that have not                       local financial support for community
                                            2020 waiver, so that if an insular area                 submitted applications for CDBG–CV                    development activities below the level
                                            applies for CDBG–CV funds by                            funds when additional allocations are                 of such support prior to the availability
                                            submitting a substantial amendment to                   announced may submit a single                         of such assistance. Given the extreme
                                            an abbreviated consolidated plan, the                   application for all allocations as a                  and unexpected downturn in local and
                                            following requirements apply. The                       substantial amendment to the most                     national economic conditions, local
                                            substantial amendment must include                      recent annual action plan, or as part of              resources are strained. Jurisdictions
                                            the CDBG–CV allocation as an available                  a new annual action plan.                             must provide new and expanded
                                            resource for the year. The amendment                       III.B.4.(b)(ii). Content of CDBG–CV                support with fewer resources. Therefore,
                                            must include the proposed use of all                    application for States Acting Directly.               HUD has concluded that when CDBG
                                            funds and how the funds will be used                    The waiver and alternative requirement                funding is used for purposes of the
                                            to prevent, prepare for, and respond to                 in paragraph III.B.6.(b)(i) permit states             CARES Act, it is not considered to
                                            coronavirus. The grantee must submit                    to carry out activities directly.                     substantially replace the amount of local
                                            the substantial amendment to HUD for                    Therefore, HUD is granting the                        financial support previously provided to
                                            review in accordance with 24 CFR                        following waiver and alternative                      community development activities.
                                            91.500, and to receive a CDBG–CV                        requirement to amend 24 CFR 91.320(d)
                                            grant, it must submit a SF–424, SF–                     and 24 CFR 91.320(k)(1)(i) to the extent              III.B.5.(b) Reimbursements
                                            424D and the certifications at 24 CFR                   necessary to require a state to submit a                 The CARES Act provides that CDBG–
                                            570.440I.                                               description of a method of distribution               CV funds may be used to cover or
                                               If CDBG–CV funds are included in a                   and include a list of the use of all funds            reimburse allowable costs of activities to
                                            substantial amendment to the most                       for activities it will carry out directly,            prevent, prepare for, and respond to
                                            recently submitted annual action plan,                  and how the use of the funds will                     coronavirus incurred by a state or
                                            existing cooperation agreements                         prevent, prepare for, and respond to                  locality regardless of the date on which
                                            between a local government and an                       coronavirus. A state that has already                 such costs were incurred. This authority
                                            urban county governing other CDBG                       submitted its application for CDBG–CV                 is broader than the authority to
                                            funds in the most recently submitted                    funds may amend its annual action plan                reimburse costs with other CDBG funds.
                                            annual action plan (for purposes of                     that describes the use of CDBG–CV                        The term ‘‘locality’’ is not defined by
                                            either an urban county or a joint                       funds to modify its description of a                  the CARES Act, the HCD Act, or the
                                            program) will automatically cover                       method of distribution and include a list             CDBG program regulations. For
                                            CDBG–CV funding as well. These                          of the use of all funds for activities it             purposes of CDBG–CV grants, a
                                            cooperation agreements will continue to                 will carry out directly, and how the use              ‘‘locality’’ shall mean units of general




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                                            apply to the use of CDBG–CV funds for                   of the funds will prevent, prepare for,               local government, as defined in section
                                            the duration of the CDBG–CV grant.                      and respond to coronavirus.                           102 of the HCD Act.
                                               Applying through a new annual                           III.B.4.(b)(iii). Deadline to Apply for               The CARES Act also requires that all
                                            action plan submission. The action plan                 Assistance. Under the CARES Act, the                  costs reimbursed with CDBG–CV funds
                                            submission procedures in 24 CFR part                    deadline is August 16, 2021, for grantees             be allowable costs, meaning they
                                            91 (including consultation and a public                 to submit their CDBG–CV action plan                   comply with all grant requirements.


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                                            51464                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            Therefore, HUD is adopting the                          requirement at 570.200(h)(1)(i) and (ii)              reimbursed with CDBG–CV or other
                                            following waivers and alternative                       that the activity for which costs are                 HUD funds.
                                            requirements to 24 CFR 570.200(h) and                   incurred must be included in a
                                                                                                                                                          III.B.5.(c) Terms and Conditions Made
                                            570.489(b) to facilitate the use of CDBG–               consolidated plan action plan or
                                                                                                                                                          Applicable by the CARES Act
                                            CV funds to reimburse allowable costs                   amended consolidated plan action plan
                                            by modifying current regulations that                   before incurring the costs. Instead, the                 The CARES Act subjects CDBG–CV
                                            are inconsistent with CARES Act                         activity for which costs were incurred                funds to the authorities and conditions
                                            reimbursement authority and imposing                    must be included in the grantee’s                     applicable to annual CDBG grants for
                                            safeguards to help ensure the                           CDBG–CV application before CDBG–CV                    fiscal year 2020. Therefore, the
                                            allowability of all costs charged to the                funds are used to reimburse those costs.              following requirements apply to CDBG–
                                            CDBG–CV grant:                                          Or, if the use of CDBG–CV funds for                   CV grants:
                                               Grantees shall not reimburse costs                   reimbursements is not included in the                    III.B.5.(c)(i). Limitations on Use of
                                            incurred before January 21, 2020,                       CDBG–CV application, this use may be                  Funds for Eminent Domain. The grantee
                                            without written approval from HUD’s                     included in a subsequent amendment to                 shall ensure that no CDBG–CV funds are
                                            Office of Block Grant Assistance                        the annual action plan that describes the             used to support any Federal, state, or
                                            (OBGA), by emailing the contact person                  use of the CDBG–CV funds (following                   local projects that seek to use the power
                                            listed at the beginning of this notice.                 the grantee’s citizen participation plan              of eminent domain, unless eminent
                                            HUD is imposing a presumption that                      procedures for amendments). To                        domain is employed only for a public
                                            costs of activities undertaken before                   facilitate the use of funds provided                  use. For the purposes of this
                                            January 21, 2020, the date the CDC                      under a one-time grant rather than an                 requirement, public use shall not be
                                            confirmed the first case of coronavirus                 annual appropriation, HUD is waiving                  construed to include economic
                                            in the United States in the State of                                                                          development that primarily benefits
                                                                                                    the time limitation and the monetary
                                            Washington,1 are highly unlikely to be                                                                        private entities. Any use of funds for
                                                                                                    limitation on reimbursements in
                                            eligible for reimbursement because they                                                                       mass transit, railroad, airport, seaport or
                                                                                                    570.200(h)(1)(v) and (vi) and related
                                            likely are not costs to prevent, prepare                                                                      highway projects as well as utility
                                                                                                    provisions at 570.200(h)(2). HUD is not
                                            for, and respond to coronavirus. The                                                                          projects which benefit or serve the
                                                                                                    waiving the requirement at
                                            need to pay for coronavirus-related costs                                                                     general public (including energy-
                                                                                                    570.200(h)(1)(iii) to comply with the
                                            incurred after this date far exceeds the                                                                      related, communication-related, water-
                                                                                                    environmental review procedures stated
                                            amount of CDBG–CV funds available.                                                                            related and wastewater-related
                                                                                                    in 24 CFR part 58.
                                            HUD cautions that it will only consider                                                                       infrastructure), other structures
                                                                                                       All grantees may authorize                         designated for use by the general public
                                            granting written approval in                            subrecipients to incur pre-award costs
                                            extraordinary cases where the clear link                                                                      or which have other common-carrier or
                                                                                                    in accordance with pre-agreement cost                 public-utility functions that serve the
                                            to the purposes of the CARES Act is                     authority under 24 CFR 570.489(b)
                                            documented by substantial evidence                                                                            general public and are subject to
                                                                                                    (states) and pre-award cost authority                 regulation and oversight by the
                                            provided to HUD by the grantee.                         under 24 CFR 570.200(h) (entitlements),
                                            Inquiries related to this requirement can                                                                     government, and projects for the
                                                                                                    as modified above. Consistent with the                removal of an immediate threat to
                                            be submitted to the contact identified                  waiver and alternative requirement in
                                            above for this notice.                                                                                        public health and safety or brownfield
                                                                                                    paragraph III.B.6.(b)(i) that authorizes              as defined in the Small Business
                                               HUD is waiving the requirements of                   states to act directly, the provisions of
                                            570.200(h) and 570.489(b) to the extent                                                                       Liability Relief and Brownfields
                                                                                                    24 CFR 570.489(b) are waived to the                   Revitalization Act (Pub. L. 107–118)
                                            necessary to authorize a grantee to                     extent necessary to authorize a state to
                                            permit reimbursement of pre-                                                                                  shall be considered a public use for
                                                                                                    charge to the grant pre-agreement costs               purposes of eminent domain.
                                            application costs of subrecipients, units               of its subrecipients in addition to the                  III.B.5.(c)(ii). Prohibition on Certain
                                            of general local government, and itself,                pre-agreement costs of units of general               Funds Transfers. The Grantee or unit of
                                            in addition to pre-agreement and pre-                   local government, in accordance with                  general local government that directly or
                                            award costs. However, an                                procedures established by the state and               indirectly receives CDBG–CV funds may
                                            environmental review must be                            subject to the requirements that apply to             not sell, trade, or otherwise transfer all
                                            performed and a release of funds must                   pre-agreement costs of units of general               or any such portion of such funds to
                                            be obtained in accordance with 24 CFR                   local government in 24 CFR 570.489(b),                another such entity in exchange for any
                                            part 58 prior to committing CDBG–CV                     and the requirements that apply to the                other funds, credits or non-Federal
                                            funds to reimburse such costs. After the                use of CDBG–CV funds.                                 considerations, but must use such funds
                                            grantee signs a CDBG–CV agreement it
                                                                                                       While provisions of 24 CFR                         for activities eligible under title I of the
                                            may reimburse a unit of general local
                                                                                                    570.489(b) requiring compliance with                  HCD Act or permitted by waiver and
                                            government or subrecipient for costs
                                                                                                    24 CFR part 58 do not apply prior to an               alternative requirements that apply to
                                            incurred before the unit of general local
                                                                                                    application for CDBG–CV funds, a unit                 the use of CDBG–CV funds.
                                            government or subrecipient applies to
                                                                                                    of general local government or state                     III.B.5.(c)(iii). E.O. 12372—Special
                                            the grantee for assistance.
                                                                                                    must document compliance with the                     Contract Condition. Notwithstanding
                                               For grantees subject to the entitlement
                                                                                                    environmental review requirements at                  any other provision governing CDBG–
                                            CDBG regulation at 24 CFR 570.200(h),
                                                                                                    24 CFR part 58 following the                          CV funds, no funds may be obligated or
                                            the following waivers and alternative
                                                                                                    application to the state or unit of general           expended for the planning or
                                            requirements apply: In lieu of the
                                                                                                    local government for funding and prior                construction of water or sewer facilities
                                            effective date described at 570.200(h),
                                                                                                    to reimbursement of pre-application                   until receipt of written notification from




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                                            the grantee shall use the date in box 4
                                                                                                    costs, per 24 CFR 570.200(h)(1)(iii) and              HUD of the release of funds on
                                            of form HUD–7082, Funding Approval/
                                                                                                    24 CFR 570.489(b). If a grantee cannot                completion of the review procedures
                                            Agreement. HUD is waiving the
                                                                                                    meet all requirements at 24 CFR part 58               required under Executive Order (E.O.)
                                              1 See CDC Press Release at: https://www.cdc.gov/      and cannot demonstrate there was no                   12372, Intergovernmental Review of
                                            media/releases/2020/p0121-novel-coronavirus-            environmental harm committed, the                     Federal Programs, and HUD’s
                                            travel-case.html.                                       pre-application costs cannot be                       implementing regulations at 24 CFR part


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                             51465

                                            52. The recipient shall also complete the                  Entitlement grantees must maintain                 pursuant to section 501(b) of the Robert
                                            review procedures required under E.O.                   records required by 24 CFR                            T. Stafford Disaster Relief and
                                            12372 and 24 CFR part 52 and receive                    570.506(b)(12) to document: (1) The                   Emergency Assistance Act, 42 U.S.C.
                                            written notification from HUD of the                    nature and degree of seriousness of the               5121–5207 (the ‘‘Stafford Act’’). (The
                                            release of funds before obligating or                   condition requiring assistance and the                President subsequently approved
                                            expending any funds for any new or                      timing of its development; (2) evidence               additional major disaster declarations
                                            revised activity for the planning or                    that the recipient certified that the                 for states); or
                                            construction of water or sewer facilities               CDBG activity was designed to address                    • Referral to the effective date of a
                                            not previously reviewed under E.O.                      the urgent need; and (3) evidence                     grantee’s own local or state emergency
                                            12372 and implementing regulations.                     confirming that other financial                       declaration.
                                               III.B.5.(c)(iv). Mandatory Evaluation                resources to alleviate the need were not                 Criteria 3: Is the grantee or unit of
                                            of Special Economic Development                         available. The State CDBG                             general local government unable to
                                            Activities. CDBG–CV funds may not be                    recordkeeping requirements at 24 CFR                  finance the activity on its own, and are
                                            provided to a for-profit entity pursuant                570.490 require states and state                      other sources of funds are not available
                                            to section 105(a)(17) of the Act unless                 recipients to maintain records to                     to carry out the activity? The extreme
                                            such activity or project has been                       demonstrate compliance with the urgent                needs of local governments resulting
                                                                                                    need criteria.                                        from coronavirus in the United States
                                            evaluated and selected in accordance
                                                                                                       The following information provides                 outweigh available resources, despite
                                            with Appendix A to 24 CFR 570—
                                                                                                    guidance on how a grantee may satisfy                 the extraordinary level of assistance
                                            ‘‘Guidelines and Objectives for
                                                                                                    existing recordkeeping requirements for               provided to states and units of general
                                            Evaluating Project Costs and Financial
                                                                                                    the urgent need national objective                    local government under the CARES Act.
                                            Requirements.’’ Given the likelihood
                                                                                                    criteria in addition to a grantee’s or unit           Therefore, documentation that the
                                            that CDBG–CV funds will be used to
                                                                                                    of general local government’s                         activity will prevent, prepare for, and
                                            assist businesses needing working
                                                                                                    certification and a state’s determination             respond to the coronavirus may be used
                                            capital financing for everyday
                                                                                                    (or state’s certification, if the state is            to demonstrate that a grantee or unit of
                                            operations, such as payroll costs, HUD
                                                                                                    acting directly):                                     general local government is unable to
                                            intends to provide advice or technical                     Criteria 1: Is the activity designed to            finance the activity on its own.
                                            assistance on the application of the                    alleviate existing conditions? For                       All CDBG–CV grantees are required to
                                            guidelines and objectives set forth in                  CDBG–CV grants, the records the                       establish and maintain adequate
                                            Appendix A to such assistance. HUD                      grantee maintains to demonstrate that                 procedures to prevent any duplication
                                            will consider providing advice or                       the activity was designed to alleviate                of benefits for assisted activities (as
                                            technical assistance in recognition of                  existing conditions can be the same                   discussed in section III.B.9. of this
                                            the differences in underwriting                         records used to show that grant funds                 notice). To demonstrate that no
                                            assistance for the wide range of                        were used to prevent, prepare for, and                financial assistance has been received or
                                            economic development projects                           respond to coronavirus, as required by                is available to pay costs charged to a
                                            permitted under section 105(a)(17) (as                  the CARES Act.                                        CDBG–CV grant, a grantee may
                                            implemented at 24 CFR 570.203(b)).                         Criteria 2: Does the condition pose a              demonstrate that no other funds are
                                            III.B.5.(d) National Objectives                         serious and immediate threat to the                   available for an activity by maintaining
                                                                                                    health or welfare of the community that               records of compliance with mandatory
                                               III.B.5.(d)(i) Use of Urgent Need                    is of recent origin or that recently                  duplication of benefits requirements
                                            National Objective. HUD has received                    became urgent? In light of the severity               described in section III.B.9.
                                            questions regarding the records                         of coronavirus and the urgency of the                    All grantees are reminded to consider
                                            necessary to document that a grantee’s                  nation in addressing its impacts,                     how the use of the urgent need national
                                            activities to prevent, prepare for, and                 pursuant to 24 CFR 570.208I                           objective will affect their compliance
                                            respond to coronavirus satisfy the                      (entitlements) or 24 CFR 570.483(d)                   with the CDBG ‘‘overall benefit’’
                                            urgent need national objective. To meet                 (states), a grantee may certify that the              requirements discussed in paragraph
                                            the urgent need national objective                      activity is designed to alleviate existing            III.B.5.(d)(iv).
                                            criteria at 24 CFR 570.208I                             conditions which pose a serious and                      III.B.5.(d)(ii) Modification of Location-
                                            (entitlements) and 570.483(d) (states), a               immediate threat to the health or                     Based Presumption of LMI Benefit for
                                            grantee (or in the case of the State CDBG               welfare of the community within 18                    Job Creation and Retention National
                                            program, a unit of general local                        months following a date determined by                 Objective Criteria. To facilitate the use
                                            government or a state, if the state is                  one of the following three methods:                   of funds for economic development,
                                            carrying out activities directly as                        • Referral to a U.S. Department of                 HUD is removing the higher poverty rate
                                            authorized by section III.B.6.(b)(i)) must              Health and Human Services issued                      required in some cases for central
                                            certify that: (1) The activity is designed              press release declaring a public health               business districts, which is not required
                                            to alleviate existing conditions; (2) those             emergency for the entire United States                by statute. HUD is instituting an
                                            existing conditions pose a serious and                  found at https://www.hhs.gov/about/                   alternative requirement to modify the
                                            immediate threat to the health or                       news/2020/01/31/secretary-azar-                       regulations at 24 CFR 570.208(a)(4)(v)
                                            welfare of the community and are of                     declares-public-health-emergency-us-                  (entitlement) and 24 CFR
                                            recent origin or recently became urgent;                2019-novel-coronavirus.html. The                      570.483(b)(4)(v) (state) by deleting the
                                            and (3) that the grantee, state, or unit of             declaration was retroactive to January                criteria at 24 CFR 570.208(a)(4)(v)(B)
                                            general local government is unable to                   27, 2020;                                             (entitlement) and 24 CFR
                                            finance the activity on its own, and that                  • Referral to the President’s                      570.483(b)(4)(v)(B) (state). Under this




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                                            other sources of funds are not available.               declaration of the ongoing Coronavirus                alternative requirement, for purposes of
                                            The State CDBG regulation at 24 CFR                     Disease 2019 (COVID–19) pandemic as                   the LMI job creation/retention national
                                            570.483(d) requires the state’s                         an emergency of sufficient severity and               objective at 24 CFR 570.208(a)(4) and 24
                                            determination of these elements in                      magnitude to warrant an emergency                     CFR 570.483(b)(4), a census tract
                                            addition to the unit of general local                   declaration for all states, tribes,                   qualifies for the presumptions under the
                                            government’s certification.                             territories, and the District of Columbia             criteria established in regulations at 24


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                                            51466                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            CFR 570.208(a)(4)(v) and 24 CFR                         and respond to coronavirus. HUD is also               remain in place to the extent that they
                                            570.483(b)(4)(v) if the poverty rate is at              modifying related recordkeeping                       require the grantee to ensure that 70
                                            least 20 percent and if it evidences                    requirements at 24 CFR 570.506(b)(7)                  percent of its CDBG–CV grant be
                                            pervasive poverty and general distress                  (entitlement) and the jointly agreed                  expended for activities that benefit LMI
                                            using the criteria described in 24 CFR                  upon requirements referenced in 24 CFR                persons. As an alternative requirement,
                                            570.208(a)(4)(v)(C) (entitlement) and 24                570.490 (state) by adding the following               however, HUD is requiring that grantees
                                            CFR 570.483(b)(4)(v)(C) (states).                       additional presumption: The recipient                 must demonstrate compliance with the
                                               This alternative requirement                         may substitute records showing the type               overall benefit requirement separately
                                            eliminates a requirement that census                    of job and the annual wages or salary of              for a grantee’s total CDBG–CV grant
                                            tracts that contain at least a portion of               the job in lieu of maintaining records                allocation and not in combination with
                                            a central business district must have a                 showing the person’s family size and                  annual formula CDBG funding or
                                            poverty rate of at least 30 percent before              income to demonstrate that the person                 commitments under the Section 108
                                            residents and businesses in the tract are               who filled or held/retained the job was               Loan Guarantee program.
                                            entitled to a presumption of low- and                   a low- or moderate-income person,                        Under this alternative requirement,
                                            moderate-income (LMI) benefit. HUD                      when required by paragraph 24 CFR                     there is no option for grantees to select
                                            has determined that eliminating the 30                  570.506(b)(5)(i)(B), (b)(5)(ii)(C),                   the timeframe for compliance. HUD
                                            percent requirement for tracts that                     (b)(6)(iii) or (b)(6)(v) (entitlement) or the         previously instructed grantees to submit
                                            contain central business districts will                 requirements referenced in 24 CFR                     certifications required by 24 CFR 91.225
                                            standardize the required poverty rate to                570.490 (state). HUD will consider the                (entitlements) or 24 CFR 91.325 (states).
                                            meet the presumption regardless of                      person income-qualified if the annual                 The regulations at 24 CFR
                                            where the persons or the business is                    wages or salary of the job is equal to or             91.225(b)(4)(ii) and 24 CFR
                                            located, which facilitates the use of                   less than the Section 8 low-income limit              91.325(b)(4)(ii) require grantees to
                                            grant funds to assist desperate                         established by HUD for a one-person                   certify that the aggregate use of CDBG
                                            businesses. Central business districts are              family. Under this alternative                        funds will comply with the overall
                                            hubs that contain many coronavirus-                     requirement, a grantee will have                      benefit requirement during a period
                                            affected businesses and facilitating                    substantially reduced documentation                   specified by the jurisdiction, consisting
                                            assistance to businesses that seek to                   requirements because they will be                     of one, two, or three specific
                                            retain jobs is consistent with the                      working with assisted businesses rather               consecutive program years. Under this
                                            purposes of the CARES Act.                              than each person, and potentially their               alternative requirement, grantees are not
                                            Standardizing the poverty rate for the                  households, who received a job.                       required to carry out the grant
                                            LMI benefit presumption may help to                        III.B.5.(d)(iv) Overall Benefit to LMI             consistent with the mandatory overall
                                            avoid wholesale collapse of central                     Persons. HUD is establishing an                       benefit certification because HUD has
                                            business districts at a when many                       alternative requirement to modify the                 changed the requirement related to
                                            businesses have closed or at risk of                    calculation of overall LMI benefit, so                overall benefit.
                                            closing due to insufficient revenues.                   that compliance with the requirement is
                                               III.B.5.(d)(iii) LMI Job Creation and                                                                      III.B.5.(e) Public Benefit
                                                                                                    separated from the annual formula
                                            Retention Records. HUD is establishing                  CDBG program calculation of overall                      III.B.5.(e)(i) Elimination of Aggregate
                                            the following waiver and alternative                    benefit. Overall LMI benefit for CDBG–                Public Benefit Test. HUD is waiving the
                                            requirement to facilitate and expedite                  CV grants will be calculated based on                 standard for aggregate public benefit
                                            assistance to coronavirus-affected                      the percentage of the CDBG–CV grant                   that applies to economic development
                                            businesses by streamlining national                     that benefits LMI persons. This                       activities described in 24 CFR
                                            objective criteria and recordkeeping                    alternative requirement is consistent                 570.209(b)(1)–(2) (entitlement) and in 24
                                            requirements for activities that benefit                with the idea that one-time,                          CFR 570.482(f)(2)–(3) (state). The public
                                            LMI persons by retaining or creating                    supplemental funding should not skew                  benefit standards were designed to
                                            jobs. The normal job creation and                       the calculation of overall benefit for use            require that economic development
                                            retention recordkeeping requirements                    of annual formula CDBG grants and                     activities, in the aggregate, provide an
                                            consider family income when                             guaranteed loan funds. This                           appropriate amount of public benefit
                                            determining whether a beneficiary is a                  modification expedites and facilitates                based on the amount of CDBG funds
                                            person of low or moderate income, but                   the use of funds in part by enabling                  used. Given the clear benefit derived
                                            these requirements are likely to be                     grantees to best plan which activities                from addressing economic disruptions
                                            burdensome during a time when                           will benefit LMI persons.                             due to coronavirus, CDBG–CV grantees
                                            unemployment has surged and family                         Section 101I of the HCD Act (42                    can adequately demonstrate public
                                            income is more difficult to document.                   U.S.C. 5301I) establishes the primary                 benefit based on the individual public
                                            Collection of income information                        objective of the HCD Act: the                         benefit standards, as modified by
                                            directly from assisted businesses can                   ‘‘development of viable urban                         waivers and alternative requirements in
                                            streamline assistance. Therefore,                       communities, by providing decent                      section III.B.5.(e)(ii).
                                            notwithstanding that the definitions of                 housing and a suitable living                            Therefore, to facilitate and expedite
                                            low-income person and moderate-                         environment and expanding economic                    the use of CDBG–CV funds for
                                            income person in 24 CFR 570.3 are                       opportunities, principally for persons of             coronavirus-related economic
                                            based on family income, for purposes of                 low and moderate income.’’ CDBG–CV                    development activities, HUD is waiving
                                            meeting the national objective criteria                 grants are subject to the requirement                 the aggregate public benefit standards at
                                            for job creation or retention at 24 CFR                 that 70 percent of funds are for activities           24 CFR 570.209(b)(1)–(2) (entitlement)
                                            570.208(a)(4) and 24 CFR 570.483(b)(4),                 that benefit LMI persons. The                         and 24 CFR 570.482(f)(2)–(3) (state). In




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                                            HUD is imposing the following waiver                    requirements at 42 U.S.C. 5301I, 42                   granting this waiver, HUD notes that
                                            and alternative requirement: Grantees                   U.S.C. 5304(b)(3)(A), 24 CFR                          based on the growing number of urgent
                                            and employers may consider                              570.200(a)(3) (entitlements and                       requests for economic development
                                            individuals that apply for or hold jobs                 nonentitlement counties in Hawaii), 24                assistance, particularly from small
                                            to be members of one-person families                    CFR 570.420(d)(2)–(3) (insular areas),                business, grantees are likely to have
                                            for activities that prevent, prepare for,               and 24 CFR 570.484 (states) shall                     difficulty determining the appropriate


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                            51467

                                            amount of CDBG assistance, in the                       coronavirus. By law, use of funds for                    III.B.5.(f)(i) Extension of Emergency
                                            aggregate, for their current and next                   any other purpose is unallowable. To                  Payments. HUD is providing an
                                            program years.                                          satisfy these purposes, grantees may                  alternative requirement to extend the
                                               III.B.5.(e)(ii) Modification of                      assist activities that respond to direct              period that grantees can make
                                            Individual Public Benefit Standards. To                 effects, such as the need to rehabilitate             emergency grant payments on behalf of
                                            facilitate the use of grant funds by                    a building to add isolation rooms for                 individuals and families. Normally,
                                            providing greater leeway to grantees to                 recovering coronavirus patients. A                    CDBG funds may not be used for income
                                            identify the most advantageous means                    grantee may also undertake activities to              payments, which are not included
                                            of providing economic development                       address indirect effects of the virus,                among eligible activities in section
                                            assistance, HUD is modifying the                        such as the economic and housing                      105(a) of the HCD Act for states, and
                                            individual public benefit standards.                    market disruptions caused by social                   which are expressly prohibited by 24
                                            HUD is imposing a waiver and                            distancing measures and stay at home                  CFR 570.207(b)(4) in the Entitlement
                                            alternative requirement to establish an                 orders implemented to prevent the                     CDBG regulations. The phrase income
                                            alternative means by which grantees can                 spread of coronavirus.                                payments means a series of subsistence-
                                            demonstrate public benefit from the use                    Some activities clearly tie back to the            type grant payments made to an
                                            of CDBG–CV funds for individual                         purposes of the CARES Act, such as                    individual or family for items such as
                                            special economic development                            public services, economic development                 food, clothing, housing (rent or
                                            activities.                                             and microenterprise assistance, public                mortgage) or utilities, but excludes
                                               Certain economic development                         facilities, and the rehabilitation of                 emergency payments made over a
                                            activities described in 24 CFR 570.209                  private buildings to provide housing.                 period of up to three consecutive
                                            (entitlement) and in 24 CFR                             However, HUD is not prohibiting                       months to the provider of such items or
                                            570.482(f)(1) (state) are subject to                    grantees from carrying out any                        services on behalf of an individual or
                                            individual public benefit standards at                  particular CDBG eligible activity                     family.
                                            24 CFR 570.209(b)(3) (entitlement) and                  described in the HCD Act and the part                    Coronavirus has had a massive impact
                                            24 CFR 570.482(f)(4) (state). Grantees                  570 regulations, because other CDBG                   on families’ ability to work for pay,
                                            must satisfy these public benefit                       eligible activities, such as acquisition,             make rent or mortgage payments, access
                                            standards to show that the amount of                    can justifiably be used to fulfill the                or pay for food, clothing, and basic
                                            CDBG funds used for individual                          CARES Act purposes depending upon                     utilities, and access many other
                                            economic development activities is                      the circumstances.                                    essential items and services. To help
                                            appropriate relative to the benefit to the                 To remain consistent with the                      individuals and families address these
                                            public from those activities.                           structure of a block grant program and                challenges, HUD is waiving section
                                               HUD is waiving the individual                        the flexibility of CDBG to provide                    105(a)(8) of the HCD Act and 24 CFR
                                            standards at 24 CFR 570.209(b)(3) and                   multiple avenues to achieve the                       570.207(b)(4) only to the extent
                                            24 CFR 570.482(f)(4) and imposing the                   purposes of the CARES Act, HUD is                     necessary to establish the following
                                            following alternative requirement. For                  implementing the limitation that funds                alternative requirement: CDBG–CV
                                            activities subject to the public benefit                be used for the coronavirus-related                   funds may be used to provide
                                            standards, grantees must document that:                 purposes of the CARES Act by requiring                emergency payments for individuals or
                                            (a) The activity will create or retain at               grantees to document the use of funds                 families impacted by coronavirus for
                                            least one full-time equivalent,                         to prevent, prepare for, and respond to               items such as food, clothing, housing
                                            permanent job per $85,000 of CDBG                       coronavirus, rather than by expressly                 (emergency rental assistance or
                                            funds used; (b) the activity will provide               prohibiting grantees from undertaking                 mortgage assistance) or utilities for up to
                                            goods or services to residents of an area               any of the eligible activities described in           six consecutive months.
                                            such that the number of LMI persons                     the HCD Act. HUD cautions grantees                       Emergency payments must be made to
                                            residing in the area served by the                      that the recordkeeping requirements of                the provider of such items or services on
                                            assisted businesses amounts to at least                 this notice require clear documentation               behalf of an individual or family, and
                                            one LMI person per $1,700 of CDBG                       that all uses of funds satisfy the                    not directly to an individual or family
                                            funds used; or (c) the assistance was                   statutory purposes of the CARES Act.                  in the form of income payments, debit
                                            provided due to business disruption                        The current needs to prevent, prepare              cards, or similar direct income
                                            related to coronavirus (in which case,                  for, and respond to coronavirus may                   payments. CDBG–CV grantees must
                                            no monetary standard applies because                    require use of CDBG–CV funds for                      ensure that proper documentation is
                                            HUD has determined that there is                        uncommon activities. HUD is preparing                 maintained to ensure that all costs
                                            sufficient public benefit derived from                  a series of technical assistance products             incurred are eligible. Grantees using this
                                            the provision of assistance to stabilize or             that describe opportunities to quickly                alternative requirement must document,
                                            sustain businesses in the grantee’s                     deploy CDBG–CV funds to address                       in their policies and procedures, how
                                            jurisdiction that suffer disruption due to              immediate needs. As this technical                    they will determine the amount of
                                            coronavirus, and that facilitation of                   assistance is developed, it will be                   assistance to be provided is necessary
                                            business assistance for this purpose may                posted on the CDBG–CV page on the                     and reasonable.
                                            help to avoid complete economic                         https://www.hud.gov/program_offices/                     III.B.5.(f)(ii) Opportunity Zones and
                                            collapse within the grantee’s                           comm_planning/cdbg_programs_covid-                    Related Flexibilities for Economic
                                            jurisdiction). This alternative                         19.                                                   Development. To facilitate and expedite
                                            requirement does not modify the                            When identifying eligible activities to            the use of grant funds for economic
                                            requirements related to eligible                        be carried out with CDBG–CV funds,                    development during this time of
                                            activities and national objectives                      grantees can reduce the potential for                 extraordinary need, HUD is clarifying




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                                            criteria.                                               duplication of benefits by designing                  the existing requirements and adopting
                                                                                                    activities that address needs not covered             an alternative requirement that expands
                                            III.B.5.(f) Eligible Activities                         by other sources of financial assistance.             economic development activities that
                                               Grantees may use CDBG–CV funds                       More information on requirements to                   can be carried out with CDBG–CV
                                            only for those activities carried out to                prevent the duplication of benefits is                funds. HUD is adopting this alternative
                                            prevent, prepare for, and respond to                    described in section III.B.9.                         requirement because the entitlement


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                                            51468                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            regulations at 24 CFR 570.203(b)                        projects through a financing                          However, the entitlement CDBG
                                            describe some financing mechanisms for                  mechanism. The nonprofit may pass                     regulation at 24 CFR 570.207(b)(1)
                                            economic development, but do not                        assistance through a financing                        (which may be used as guidance by state
                                            provide an exhaustive list of the forms                 mechanism to another entity based on                  grantees), allows grantees to purchase or
                                            of support grantees can provide to                      the language in section 105(a)(15) of the             to pay depreciation in accordance with
                                            private, for-profit businesses and to                   HCD Act. Grantees subject to                          2 CFR part 200, subpart E, for personal
                                            nonprofits for special economic                         entitlement regulations must document                 property, fixtures, and equipment when
                                            development activities. Many economic                   that the assisted nonprofit is serving the            necessary when such items constitute
                                            development activities are carried out in               development needs of the jurisdiction                 all or part of a public service. Examples
                                            conjunction with other forms of                         and that the assistance is used for a                 of use of equipment that constitute all
                                            assistance and Federal tax-based                        community economic development                        or part of a public service include
                                            programs that help provide additional                   project that is necessary to prevent,                 equipment and supplies owned by the
                                            sources of financing for economic                       prepare for, and respond to coronavirus.              grantee or subrecipient that provides the
                                            development, particularly in LMI areas.                    III.B.5.(f)(iii) Public Services Cap. The          public service, e.g., ventilators or other
                                            HUD wants to facilitate the ability for                 CARES Act provides that                               medical equipment and supplies that
                                            grantees to use CDBG–CV funds to fill                   notwithstanding section 105(a)(8) of the              will be used in providing health care at
                                            financing gaps that cannot be met by                    HCD Act (42 U.S.C. 5305(a)(8)), there                 a field clinic, or a vehicle outfitted with
                                            other sources and quickly launch                        shall be no per centum limitation for the             medical equipment to provide mobile
                                            critical economic development projects,                 use of funds for public services                      health care.
                                            particularly in Opportunity Zones and                   activities to prevent, prepare for, and                  III.B.5.(f)(v). Clarification on
                                            other target areas, without taking the                  respond to coronavirus. The CARES Act                 Application of Requirements in 2 CFR
                                            time to seek additional clarification                   provides this flexibility for all CDBG–               part 200. In response to the coronavirus
                                            from HUD on activity eligibility for                    CV funds and CDBG funds appropriated                  pandemic, the Office of Management
                                            individual projects.                                    in fiscal years 2019 and 2020 to the                  and Budget (OMB) released two
                                               First, this notice clarifies an existing             extent that grantees use these funds to               memoranda that allow Federal agencies
                                            requirement of economic development                     carry out public service activities to                to grant exceptions to some
                                            activities that grantees may carry out                  prevent, prepare for, and respond to                  requirements under 2 CFR part 200, the
                                            pursuant to 24 CFR 570.203(b)                           coronavirus.                                          Uniform Administrative Requirements,
                                            (entitlement) or section 105(a)(17) of the                 Following enactment of the CARES
                                                                                                                                                          Cost Principles and Audit Requirements
                                            HCD Act (state). Grantees may provide                   Act, the public services cap described in
                                                                                                                                                          for Federal Awards. HUD reminds
                                            assistance to an economic development                   section 105(a)(8) of the HCD Act and 24
                                                                                                                                                          grantees that the flexibilities in these
                                            project through a for-profit entity that                CFR 570.201I has no effect on CDBG–CV
                                                                                                    grants. Program income generated by the               memoranda do not automatically apply
                                            passes the funds through a financing
                                                                                                    use of CDBG–CV funds is given special                 to grantees. HUD has not approved class
                                            mechanism (e.g., Qualified Opportunity
                                                                                                    treatment, as discussed in III.B.6.(a).               exceptions to 2 CFR part 200 for CDBG–
                                            Funds and New Markets Tax Credit
                                                                                                    Therefore, notwithstanding the                        CV grants or CDBG grants, so the
                                            (NMTC) investment vehicles). The
                                                                                                    provisions of section 105(a)(8) of the                requirements in 2 CFR part 200
                                            regulations at 24 CFR 570.203(b) already
                                                                                                    HCD Act, program income is not a                      continue to apply.
                                            list forms of support by which grantees
                                            can provide assistance to private, for-                 consideration for purposes of                            The OMB memoranda were for
                                            profit businesses where the assistance is               determining the amount of CDBG–CV                     limited purposes and were not intended
                                            appropriate to carry out an economic                    funds that can be expended on public                  to cover all grantees and activities. The
                                            development project. HUD has                            services. The calculation of the public               March 9, 2020 memorandum, M–20–11,
                                            previously interpreted this provision to                services cap for fiscal year 2020 and                 Administrative Relief for Recipients and
                                            allow for CDBG assistance to NMTC                       2019 annual formula CDBG grants is                    Applicants of Federal Financial
                                            investment vehicles. This clarification                 discussed in section IV.B.4.(a).                      Assistance Directly Impacted by the
                                            makes clear that such assistance through                   III.B.5.(f)(iv) Other Public Services              Novel Coronavirus (COVID–19)
                                            any financing mechanism (which is not                   Considerations. HUD reminds grantees                  (available at https://
                                            limited to NMTC investment vehicles) is                 to comply with other requirements in                  www.whitehouse.gov/wp-content/
                                            eligible under 24 CFR 570.203(b). The                   section 105(a)(8) of the HCD Act, and for             uploads/2020/03/M-20-11.pdf), allows
                                            regulation also does not apply to states,               grantees subject to entitlement CDBG                  Federal agencies to grant class
                                            but states may consider 24 CFR                          regulations, 24 CFR 570.201I. Namely,                 exceptions in instances where the
                                            570.203(b), as clarified by the following               CDBG–CV funds may only be used for                    agency has determined that the purpose
                                            alternative requirement, as guidance in                 those public service activities that are              of the Federal awards is to support the
                                            the same way that they may consider                     new or that represent a quantifiable                  continued research and services
                                            other Entitlement CDBG regulations.                     increase above the level of an existing               necessary to carry out the emergency
                                               HUD is not waiving 24 CFR                            service that has been provided by or on               response related to COVID–19. The
                                            570.203(b) (entitlement) or section                     behalf of the unit of general local                   March 19, 2020 memorandum, M–20–
                                            105(a)(17) (state), and other statutory                 government (through funds raised by                   17, Administrative Relief for Recipients
                                            and regulatory requirements remain in                   the unit or received by the unit from the             and Applicants of Federal Financial
                                            place.                                                  state in which it is located) in the 12               Assistance Directly Impacted by the
                                               Second, this notice establishes an                   calendar months before the submission                 Novel Coronavirus (COVID–19) due to
                                            alternative requirement that expands the                of the action plan, unless the Secretary              Loss of Operations (available at https://
                                            authority in section 105(a)(15) of the                  finds that the discontinuation of such                www.whitehouse.gov/wp-content/




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                                            HCD Act and 24 CFR 570.204 to permit                    services was the result of events not                 uploads/2020/03/M-20-17.pdf) allows
                                            grantees subject to entitlement CDBG                    within the control of the unit of general             HUD to make class exceptions for an
                                            regulations to assist nonprofit                         local government.                                     expanded scope of recipients affected by
                                            organizations serving the development                      Additionally, grantees are reminded                the loss of operational capacity and
                                            needs of their jurisdiction by carrying                 that the purchase of personal property                increased costs due to the COVID–19
                                            out community economic development                      and equipment is generally ineligible.                crisis. OMB indicated that it would


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                          51469

                                            reassess the authority granted by these                 HUD is issuing the waivers and                        necessary to allow a state to use its
                                            memoranda within 90 days.                               alternative requirements in this section              CDBG–CV funds for eligible activities
                                                                                                    based in part on information in requests              that the state carries out directly. The
                                            III.B.6. Other Program Requirements
                                                                                                    from states and in part to implement                  standard at 24 CFR 570.480I and the
                                            III.B.6.(a) Program Income                              provisions of the CARES Act that permit               provisions at section 104I(2) of the HCD
                                               To expedite use of grant funds, HUD                  grant funds allocated to states to be used            Act (42 U.S.C. 5304I(2)) are modified to
                                            is clarifying the requirements for CDBG–                in entitlement areas.                                 also include activities that the state
                                            CV grants on the treatment of program                      HUD has determined that this waiver                carries out directly. Section 106(d) of
                                                                                                    and alternative requirement will                      the HCD Act is not otherwise waived,
                                            income at 24 CFR 570.504 (entitlement)
                                                                                                    facilitate and expedite the use of CDBG–              except as provided in this notice.
                                            and 24 CFR 570.489I–(f) (state) that is
                                                                                                    CV funds by supporting states in their                   A state may carry out eligible
                                            generated by the use of CDBG–CV
                                                                                                    roles as significant coordinators of                  activities directly, consistent with the
                                            funds. The receipt and expenditure of
                                                                                                    statewide and regional activities to                  entitlement program requirement of 24
                                            program income that is generated by the
                                                                                                    prevent, prepare for, and respond to                  CFR 570.200(f), through its employees,
                                            use of CDBG–CV funds shall be treated
                                                                                                    coronavirus. Additionally, these waivers              through procurement contracts, or
                                            as annual formula CDBG program
                                                                                                    and alternative requirements are                      through assistance provided under
                                            income and recorded as part of the
                                                                                                    designed to reduce administrative costs               agreements with subrecipients. Pursuant
                                            financial transactions of the annual
                                                                                                    and streamline the delivery of assistance             to section 102I of the HCD Act, one or
                                            formula CDBG grant program. This                        by maintaining a single set of grant                  more public agencies may be designated
                                            clarification will facilitate expenditures              requirements for all CDBG–CV                          by the chief executive officer of a state
                                            of CDBG–CV grant funds for their                        allocations.                                          to undertake activities assisted under
                                            intended purpose, while continuing to                      These waivers and alternative                      this chapter. A state is responsible for
                                            maintain appropriate controls on the                    requirements are only available to a                  ensuring that CDBG–CV funds are used
                                            use of program income.                                  state if it complies with the following               in accordance with all program
                                               III.B.6(a)(i) Use of program income                  alternative requirements in this                      requirements. The use of interagency
                                            before annual formula CDBG grant                        paragraph and in III.B.6.(b)(ii)–(iv):                agreements, subrecipient agreements
                                            funds. Any program income generated                        Nonentitlement set aside: A state                  (including agreements with Indian
                                            from the use of CDBG–CV funds will be                   must set aside a portion of its grant for             tribes and designated public agencies, as
                                            receipted in HUD’s Integrated                           use by nonentitlement units of general                described in section III.B.6.(b)(ii)) or
                                            Disbursement and Information System                     local government. The nonentitlement                  contracts does not relieve the state of
                                            (IDIS) as program income to the annual                  set aside must be no less than an                     this responsibility. States are
                                            formula CDBG grant program.                             amount equal to the state’s first CDBG–               responsible for determining the
                                               III.B.6(a)(ii) Inapplicability of float-             CV allocation and may be from any                     adequacy of performance under
                                            funded activities. Based on the                         portion of the state’s additional CDBG–               subrecipient agreements and procured
                                            treatment of income generated from the                  CV allocation. This limitation is                     contracts, and for taking appropriate
                                            use of CDBG–CV funds as annual                          imposed for consistency with the                      action when performance problems
                                            formula CDBG program income, HUD is                     CDBG–CV formulas, which include a                     arise. State grantees continue to be
                                            waiving 24 CFR 570.301(b) and section                   direct allocation to entitlement areas                responsible for civil rights, labor
                                            104(h) of the HCD Act for CDBG–CV                       and to states on behalf of                            standards, and environmental
                                            grants. HUD is imposing the following                   nonentitlement areas to prevent, prepare              protection requirements, for compliance
                                            alternative requirement: Grantees shall                 for, and respond to coronavirus. The                  with all applicable requirements,
                                            not use CDBG–CV funds for float-                        nonentitlement set aside fulfills the                 including conflict of interest provisions
                                            funded activities or guarantees.                        intent reflected by the formula to                    in 24 CFR 570.489(g) and (h).
                                               III.B.6(a)(iii) Retention of program                 address needs in urban and rural areas,                  The national objective criteria in 24
                                            income by subrecipients. A grantee may                  while giving states the flexibility to                CFR 570.483 are modified by the
                                            permit subrecipients (including units of                determine how to expend each                          following alternative requirement when
                                            general local government receiving                      allocation as it is made based on needs               states carry out activities directly: The
                                            funds from a state) to retain program                   within its jurisdiction.                              state must fulfill all requirements that
                                            income from the use of CDBG–CV funds                       Inclusion in CDBG–CV Application: A                570.483 imposes on units of general
                                            under this paragraph if the amount held                 state’s proposal to act directly and to               local government to demonstrate
                                            does not exceed the subrecipient’s                      distribute or use CDBG–CV funds in                    compliance with national objective
                                            projected cash needs for CDBG activities                entitlement areas must be published for               criteria.
                                            including activities to prevent, prepare                public comment in its application for                    The recordkeeping requirements at 24
                                            for, and respond to coronavirus.                        CDBG–CV funds or in a subsequent                      CFR 570.490(b) are waived when states
                                                                                                    substantial amendment to the annual                   carry out activities directly, and the
                                            III.B.6.(b) Rules Applicable to State                                                                         following alternative requirement shall
                                            CDBG–CV Grants                                          action plan that includes the CDBG–CV
                                                                                                    funds.                                                apply: The state shall establish and
                                              The paragraphs in this section apply                     Activities carried out in tribal areas:            maintain such records as may be
                                            only to State CDBG–CV grantees.                         A state grantee may carry out activities              necessary to facilitate review and audit
                                              III.B.6.(b)(i) Direct Action by States.               in tribal areas. States carrying out                  by HUD of the state’s administration of
                                            The waivers and alternative                             projects in tribal areas through                      CDBG–CV funds, under 24 CFR 570.493.
                                            requirements in this section and in                     employees, contractors, or subrecipients              Consistent with applicable statutes,
                                            sections III.B.6.(b)(ii)–(iv) permit a state            must obtain the consent of the Indian                 regulations, waivers and alternative




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                                            grantee to use a portion of its funds to                tribe with jurisdiction over the tribal               requirements, and other Federal
                                            act directly to carry out activities                    area.                                                 requirements, the content of records
                                            through employees, contractors, and                        Other conforming changes:                          maintained by the state shall be
                                            subrecipients in all geographic areas                   Requirements at section 106(d) of the                 sufficient to: (1) Enable HUD to make
                                            within its jurisdiction, including                      HCD Act (42 U.S.C. 5306(d)) and 24 CFR                the applicable determinations described
                                            entitlement areas and tribal populations.               570.480(g) are waived to the extent                   at 24 CFR 570.493; (2) make compliance


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                                            51470                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            determinations for activities carried out               definition of subrecipient at 24 CFR                  acs-low-mod-summary-data-exception-
                                            directly; and (3) show how activities                   570.500(c) applies when states carry out              grantees/.
                                            funded are consistent with the                          activities through subrecipients, and the                III.B.6.(b)(v) Elimination of State
                                            descriptions of activities proposed for                 requirements of 24 CFR 570.489(g) (as                 Administrative Match. To expedite the
                                            funding in the CDBG–CV application.                     modified by section III.B.6.(b)(i)) shall             use of CDBG–CV funds, HUD is waiving
                                            For fair housing and equal opportunity                  apply.                                                the requirement for matching state
                                            (FHEO) purposes, as applicable, such                       For purposes of this alternative                   administrative funds, subject to the
                                            records shall include data on the race,                 requirement, the definition of                        requirements of section III.B.6.(b)(vi)
                                            ethnicity, and sex of persons who are                   subrecipients at 24 CFR 570.500I is                   below. Requiring states to match
                                            applicants for, participants in, or                     modified to expressly include Indian                  administrative funds may considerably
                                            beneficiaries of the activity.                          tribes. Indian tribes that receive CDBG–              slow down the expenditure of CDBG–
                                               The change of use of real property                   CV funding from a state grantee must                  CV funds in states struggling to
                                            rule at 24 CFR 570.489(j) is modified to                comply with the Indian Civil Rights Act               accurately project and adjust their
                                            include instances when a state carries                  (Title II of the Civil Rights Act of 1968,            budgets given the challenges caused by
                                            out activities directly. All references to              25 U.S.C. 1301 et seq.). This conforming              coronavirus. The requirements at 42
                                            ‘‘unit of general local government’’ shall              requirement is necessary because the                  U.S.C. 5306(d)(3)(A) and 24 CFR
                                            be read as ‘‘state, unit of general local               state CDBG regulations do not anticipate              570.489(a) are waived to the extent
                                            government (UGLG) or state                              states distributing funds through means               necessary to eliminate the state match
                                            subrecipient.’’                                         other than a method of distribution to                requirement for general administrative
                                               To include instances when a state                    units of general local government.                    costs.
                                            carries out activities directly, 24 CFR                    III.B.6.(b)(iii) Activities Carried Out by
                                                                                                                                                             III.B.6.(b)(vi) Cap on State
                                            570.492 is waived and the following                     States in Entitlement Areas. The
                                                                                                                                                          Administrative Costs and Technical
                                            alternative requirement applies: The                    provisions of 24 CFR 570.486(c) are
                                                                                                                                                          Assistance. Pursuant to 24 CFR
                                            state shall make reviews and audits,                    waived to the extent that they allow
                                                                                                                                                          570.489(a)(3)(iii), a state and its funded
                                            including on-site reviews of any                        States, either directly or through units of
                                                                                                                                                          units of general local government and
                                            subrecipients and local governments, as                 general local government, to use CDBG–
                                                                                                                                                          subrecipients are, in aggregate,
                                            may be necessary or appropriate to meet                 CV funding for activities located in
                                                                                                                                                          permitted to expend no more than 20
                                            the requirements of section 104I(2) of                  entitlement areas without contribution
                                            the HCD Act, as amended. In the case                    from the entitlement jurisdiction,                    percent of the CDBG–CV grant for
                                            of noncompliance with these                             consistent with the waiver and                        planning, management, and
                                            requirements, the state shall take such                 alternative requirements in sections                  administrative costs. Under 42 U.S.C.
                                            actions as may be appropriate to prevent                III.B.6.(b)(i) and (ii). HUD is granting              5306(d)(5) and (6) and 24 CFR
                                            a continuance of the deficiency, mitigate               this waiver to facilitate and expedite the            570.489(a)(1) a state may not directly
                                            any adverse effects or consequences,                    use of grant funds for consistency and                use more than $100,000 plus 3 percent
                                            and prevent a recurrence. The state shall               ease of administration by granting the                of its annual grant for administrative
                                            establish remedies for noncompliance                    same geographic flexibilities to all                  and technical assistance costs
                                            by any subrecipients or local                           allocations of CDBG–CV funds, since                   combined. HUD is waiving 42 U.S.C.
                                            governments.                                            they will be administered under a single              5306(d)(5) and (6) and 24 CFR
                                               To include instances when a state                    grant.                                                570.489(a)(1) and establishing an
                                            carries out activities directly in                         III.B.6.(b)(iv) Use of the ‘‘upper                 alternative requirement that a state may
                                            accordance with the waiver in this                      quartile’’ or ‘‘exception criteria’’ for LMI          use up to 7 percent of its CDBG–CV
                                            paragraph, 24 CFR 570.489(g) is                         area benefit activities. Section                      grant combined for general
                                            modified to revise the requirement that                 105(c)(2)(A) of the HCD Act authorizes                administration and technical assistance
                                            ‘‘[t]he state shall establish requirements              HUD to permit an exception to the LMI                 costs; of that 7 percent, a state may use
                                            for procurement policies and                            area benefit national objective criteria              up to 5 percent of CDBG–CV funds for
                                            procedures for units of general local                   that are normally satisfied when at least             general administration costs and up to
                                            government’’ so that it applies to ‘‘units              51 percent of the population of an area               2 percent of the grant for technical
                                            of general local government and                         are persons of low and moderate                       assistance activities. The remainder of
                                            subrecipients.’’ To facilitate grant                    income. HUD is clarifying how this                    the amount may be used by units of
                                            administration by adopting state-wide                   ‘‘exception criteria’’ applies when State             general local government for
                                            procurement policies, a state agency                    CDBG–CV grantees carry out activities                 administrative and technical assistance
                                            designated to oversee the use of all its                in entitlement jurisdictions as                       costs, provided that a state and its
                                            CDBG–CV funds pursuant to section                       authorized by section III.B.6.(b)(iii). If            funded units of general local
                                            102I of the HCD Act may impose its                      the area in which the activity is carried             government and subrecipients expend
                                            procurement requirements on all uses of                 out would benefit from the ‘‘exception                no more than 20 percent of the CDBG–
                                            CDBG–CV funds by the state, including                   criteria’’ that permit a grantee to use a             CV grant for planning, management, and
                                            by other state agencies that administer                 percentage less than 51 percent to                    administrative costs. A grantee must
                                            a portion of the CDBG–CV grants, so                     qualify activities under the LMI area                 meet this alternative requirement over
                                            long as those requirements comply with                  benefit criteria, those exception criteria            the life of its grant, as amended to
                                            24 CFR 570.489(g).                                      apply to the use of CDBG–CV funds by                  incorporate additional allocations of
                                               III.B.6.(b)(ii) Use of Subrecipients by              a state the same way that they apply to               CDBG–CV funds.
                                            States (Including Nonprofits and                        the use of CDBG funds by the                             CDBG–CV grant funds shall not be
                                            Tribes). HUD is adopting the following                  entitlement grantee in the same area.                 used to pay planning and program




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                                            alternative requirement that shall apply                CDBG–CV grantees are required to use                  administrative costs allocable to another
                                            when states carry out activities directly:              the most recent data available in                     grant under the CDBG annual formula
                                            States carrying out activities through                  implementing the exception criteria. For              program; however, CDBG–CV funds
                                            subrecipients must comply with 24 CFR                   more information on the data set, please              may be used to pay costs that benefit
                                            570.489(m) relating to monitoring and                   visit https://www.hudexchange.info/                   both the CDBG–CV grant and another
                                            management of subrecipients. The                        programs/acs-low-mod-summary-data/                    CDBG award and can be distributed


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                            51471

                                            between the grants in proportions that                  CDBG–CV grants. Additionally, CDBG–                   Certification and Request for Release of
                                            may be reasonably approximated.                         CV funds shall not be included in the                 Funds to HUD for approval.
                                               III.B.6.(b)(vii) Procurement. Except as              compliance determination of the                          III.B.6.(d)(iii) Clarifying note on
                                            described in section III.B.6. to                        program year obligation test applicable               emergency environmental review
                                            accommodate states acting directly, this                to annual formula CDBG funds.                         procedures. HUD’s environmental
                                            notice does not modify procurement                      Additionally, program income,                         review regulations in 24 CFR part 58
                                            requirements at 24 CFR 570.489(g) for                   regardless of the source funding of the               include two provisions that may be
                                            state grantees. As discussed above, the                 activity that generated the income, shall             relevant to environmental review
                                            local procurement policies and                          be included in the compliance                         procedures for activities to prevent,
                                            procedures that apply to the use of                     determination of the administrative and               prepare for, and respond to coronavirus.
                                            annual formula CDBG grant funds may                     planning cost cap applicable to annual                The first is 24 CFR 58.34(a)(10), which
                                            not be nimble enough to accommodate                     formula CDBG grants and program                       provides an exemption for certain
                                            this urgent need to quickly procure                     income, separately from CDBG–CV                       activities undertaken in response to a
                                            goods and services necessary to carry                   funds.                                                national or locally declared public
                                            out eligible activities. HUD recommends                   CDBG–CV grant funds shall not be                    health emergency. Except for the
                                            that CDBG–CV grantees review their                      used to pay planning and program                      applicable requirements of 24 CFR 58.6,
                                            existing procurement policies to explore                administrative costs allocable to another             a responsible entity does not have to
                                            the potential use of state or local waiver              grant under the CDBG annual formula                   comply with the requirements of part 58
                                            authority and emergency procedures                      program; however, CDBG–CV funds                       or undertake any environmental review,
                                            that may expedite procurement                           may be used to pay costs that benefit                 consultation or other action under
                                            processes.                                              both the CDBG–CV grant and another                    NEPA and the other provisions of law
                                               Additionally, if the grantee plans to                CDBG award and can be distributed                     or authorities cited in 24 CFR 58.5 for
                                            use CDBG–CV grants to carry out                         between the grants in proportions that                exempt activities or projects consisting
                                            eligible activities that satisfy non-                   may be reasonably approximated.                       solely of exempt activities. Exempt
                                            Federal cost share requirements under                                                                         activities include assistance for
                                            section 105(a)(9) of the HCD Act, the                   III.B.6.(d) Compliance With
                                                                                                                                                          temporary or permanent improvements
                                            grantee should consider modifying                       Environmental Review Requirements
                                                                                                                                                          that do not alter environmental
                                            procurement policies to authorize                          III.B.6.(d)(i) Overview of                         conditions and are limited to protection,
                                            grantees to use procurement policies                    Environmental Review Requirements.                    repair, or restoration activities necessary
                                            and procedures of the agencies paying                   Environmental regulations at 24 CFR                   only to control or arrest the effects from
                                            the Federal cost share of the activity, to              58.22 prohibit CDBG grantees, a                       imminent threats to public safety.
                                            the extent that those policies and                      recipient, and any other participant in                  The second is a streamlined public
                                            procedures are consistent with the                      the development process from                          notice and comment period in the
                                            procurement requirements on the use of                  committing HUD or non-HUD funds to                    regulation at 24 CFR 58.33, which may
                                            CDBG–CV funds. Modifying                                a project until the environmental                     apply in some cases for emergency
                                            procurement policies to allow the use of                compliance review process has been                    activities undertaken to prevent, prepare
                                            procurement requirements imposed by                     successfully completed or until receipt               for, and respond to coronavirus. The
                                            other Federal grants is easier for state                of the Authority to Use Grant Funds, if               application of these two provisions
                                            grantees, but entitlement grantees that                 applicable. In addition, neither a                    following a presidentially-declared or
                                            anticipate use of a substantial amount of               recipient nor any participant in the                  locally-declared public health
                                            CDBG–CV funds to satisfy non-Federal                    development process may commit non-                   emergency is discussed in the Notice,
                                            cost share may also be able to adopt a                  HUD funds on or undertake an activity                 Guidance on conducting environmental
                                            similar provision where the other                       or project if the activity or project would           review pursuant to 24 Part 58 for
                                            Federal granting agency imposes the                     have an adverse environmental impact                  activities undertaken in response to the
                                            procurement requirements in 2 CFR part                  or limit the choice of reasonable                     public health emergency as a result of
                                            200.                                                    alternatives. Therefore, it is very                   COVID–19 posted at https://
                                                                                                    important for grantees to begin and                   www.hud.gov/sites/dfiles/OCHCO/
                                            III.B.6.(c) Rules for Entitlements, Insular             complete any required environmental                   documents/2020-07cpdn.pdf.
                                            Areas, and Nonentitlement Hawaii                        compliance review as soon as possible.
                                            Counties                                                Grantees are urged to contact their Field             III.B.6.(e) Compliance With Labor Laws
                                               III.B.6.(c)(i) Administrative and                    Environmental Officer for more                           CDBG–CV grants are subject to the
                                            Planning Cost Caps. To expedite the use                 information about environmental review                Davis-Bacon prevailing wage
                                            of grant funds, HUD is waiving                          requirements.                                         requirements imposed by section 110(a)
                                            requirements of 24 CFR 570.200(g) that                     III.B.6.(d)(ii) Clarifying note on the             of the HCD Act. HUD cannot waive this
                                            are inconsistent with the treatment of                  process for environmental release of                  or other labor laws. Under regulations of
                                            program income in section III.B.6.(a)                   funds when a State carries out activities             the Department of Labor (DOL) at 29
                                            and the treatment of CDBG–CV funds as                   directly. Usually, a state distributes                CFR 1.6(g), where Federal assistance is
                                            a standalone grant. The following                       CDBG funds to local governments and                   not approved prior to contract award (or
                                            alternative requirement applies to grants               takes on HUD’s role in receiving                      the beginning of construction if there is
                                            subject to subpart D (entitlement grants                environmental certifications from the                 no contract award), Davis-Bacon wage
                                            and grants to the nonentitlement                        grant recipients and approving releases               rates apply retroactively to the
                                            counties of the State of Hawaii): No                    of funds. Under the waiver and                        beginning of construction and must be
                                            more than 20 percent of the total CDBG–                 alternative requirement in paragraph                  incorporated retroactively in the




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                                            CV grant shall be expended for planning                 III.B.6.(b), HUD will allow a State                   contract specifications. However, if
                                            and program administrative costs, as                    CDBG–CV grantee to carry out activities               there is no evidence that the owner
                                            defined in 24 CFR 570.205 and 24 CFR                    directly in addition to distributing funds            intended to apply for the CDBG–CV
                                            570.206, respectively. There is no                      to subrecipients. Thus, per 24 CFR 58.4,              assistance prior to the contract award or
                                            program year obligation test for                        when a state carries out activities                   the start of the construction, HUD may
                                            planning and administrative costs of                    directly, the state must submit the                   request that DOL allow prospective,


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                                            rather than retroactive, application of                 III.B.7. Period of Performance,                       generated from CDBG–CV activities will
                                            the Davis-Bacon wage rates. DOL may                     Timeliness, and Closeout                              be included in timely expenditure
                                            allow prospective application of Davis-                 III.B.7.(a) Period of Performance                     compliance determinations for each
                                            Bacon requirements where it finds that                                                                        entitlement grantee’s annual formula
                                            it is necessary and proper in the public                   CDBG–CV grantees must expend all                   CDBG program. Grantees should
                                            interest to prevent injustice or undue                  CDBG–CV funds (including CDBG–CV                      consider the potential effects of
                                            hardship and it finds no intent to apply                funds from additional allocations that                additional program income to
                                            for the federal assistance before contract              are obligated by HUD through                          compliance with timeliness
                                            award or the start of construction. The                 amendments to the grant agreement)                    requirements applicable to their annual
                                            CDBG–CV Grantee should contact a                        within the 6-year period of performance               formula CDBG grant program when they
                                            HUD Labor Relations Specialist if such                  established by the CDBG–CV grant                      select and design CDBG–CV assisted
                                            a situation arises.                                     agreement. HUD is imposing this period                activities.
                                                                                                    of performance to ensure the use of
                                            III.B.6.(f) Relationship to Section 108                 CDBG–CV funds to prevent, prepare for,                III.B.7.(c) Closeout
                                            Loan Guarantees                                         and respond to coronavirus. The CDBG                     To facilitate the use of grant funds in
                                               Under the Section 108 Loan                           regulations at 24 CFR 570.200(k) and 24               a timely manner, HUD is waiving the
                                            Guarantee Program, CDBG grantees can                    CFR 570.480(h) permit HUD to establish                CDBG closeout regulations at 24 CFR
                                            borrow up to five times their most                      a period for expenditure and                          570.509 for grantees subject to
                                                                                                    performance in a grant agreement that is              entitlement regulations and imposing an
                                            recent CDBG grant by issuing federally
                                                                                                    shorter than the normal 8-year period.                alternative requirement that HUD will
                                            guaranteed notes. To ensure that CDBG–
                                                                                                    HUD is exercising its authority to                    close out grants in accordance with
                                            CV funds are used for the purposes
                                                                                                    establish a 6-year period of performance              grant closeout requirements of 2 CFR
                                            authorized by the CARES Act, HUD is
                                                                                                    and expenditure deadline in the CDBG–                 200.343. This approach is consistent
                                            issuing the following alternative
                                                                                                    CV grant agreement. Grant funds are not               with the state regulation at 24 CFR
                                            requirement to sections 108(b) and (c) of
                                                                                                    available for expenditure after the                   570.489(o). This will help all grantees to
                                            the HCD Act (42 U.S.C. 5308(c)): CDBG–
                                                                                                    period of performance. In addition, to                expend grant funds within a short
                                            CV funds shall not be factored into a
                                                                                                    further ensure the expedited use of the               timeframe designed to maximize the
                                            grantee’s Section 108 borrowing
                                                                                                    funds, HUD is imposing an alternative                 ability of CDBG–CV funds to prevent,
                                            authority.                                              requirement that each grantee must                    prepare for, and respond to coronavirus.
                                               A grantee may use CDBG–CV funds to                   expend at least 80 percent of all CDBG–               Grantees subject to this alternative
                                            make a direct payment of principal,                     CV funds (including CDBG–CV funds                     requirement must submit all financial,
                                            interest, or any fees due under a Section               from additional allocations that are                  performance, and other reports as
                                            108 note only if the use of funds is to                 obligated by HUD through amendments                   required by 24 CFR 91.520.
                                            prevent, prepare for, and respond to                    to the grant agreement) no later than the                In general, HUD expects all grantees
                                            coronavirus. The necessity of such use                  end of the third year of the period of                to comply with all grant requirements
                                            shall be documented by the grantee or                   performance established by the CDBG–                  and fully close out a grant at the end of
                                            the subrecipient that provided the                      CV grant agreement. If this three-year                the period of performance. However,
                                            assistance (e.g., if Section 108 funds                  requirement is not met, and evidence                  HUD recognizes that there are many
                                            were used by the grantee to provide                     meeting the criteria for extension                    things that could disrupt a grantee’s
                                            assistance to a for-profit business in the              described in section III.B.7.(c) below is             intended timeline for activity
                                            form of a loan and the business is                      not provided, an amount equivalent to                 completion: Litigation, disasters, limited
                                            unable to make a payment due to the                     the difference between the total amount               construction seasons due to weather, or
                                            reduction in revenue caused by                          expended at the end of the third year                 other extenuating circumstances.
                                            coronavirus, any restructuring of that                  and 80 percent of all CDBG–CV funds                   Therefore, HUD may authorize an
                                            loan must be supported by modification                  will be recaptured from the CDBG–CV                   extension of the three-year expenditure
                                            to loan documents that document the                     grant.                                                requirement or the overall period of
                                            relationship to coronavirus). When                                                                            performance if the grantee provides
                                            CDBG–CV funds are used to subsidize                     III.B.7.(b) Timeliness                                evidence of such extenuating
                                            or replace principal, interest, or fees due                CDBG–CV grants are available for                   circumstances that would warrant the
                                            under a loan previously made with                       limited purposes under the CARES Act.                 extension and that they could
                                            guaranteed loan funds as part of an                     They are subject to a shortened period                demonstrate they would meet all
                                            activity to assist a for-profit or a                    of performance. Under section                         program requirements within the
                                            subrecipient, and the CDBG–CV                           III.B.6.(a), program income generated by              extended expenditure period or period
                                            assistance is necessary to respond to the               the use of CDBG–CV funds is treated as                of performance.
                                            impact of coronavirus (e.g., a third-party              program income to a grantee’s annual                     HUD may consider, in closing out
                                            business borrower whose loan is the                     formula CDBG program. For these                       CDBG–CV grants, any requirements that
                                            intended source for repayment of a                      reasons, HUD is waiving to the extent                 remain applicable after closeout. These
                                            Section 108 loan is not collecting                      necessary to allow HUD to determine                   may include authority for HUD to
                                            sufficient revenue due to local public                  that every grantee has circumstances                  monitor the recipient’s compliance and
                                            health conditions), the documentation                   beyond its reasonable control the timely              performance after the closeout of the
                                            that the original assisted activity                     performance enforcement actions found                 award with respect to requirements that
                                            satisfies national objective criteria shall             at 24 CFR 570.902 (entitlement timely                 are applicable after closeout, and HUD
                                            be sufficient to demonstrate that the use               expenditure), and 24 CFR 570.494 (state               may take findings of noncompliance




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                                            of the guaranteed loan funds and the                    timely distribution). CDBG–CV funds                   into account, with the closeout process,
                                            additional CDBG–CV assistance meet a                    will not be included in determining                   as unsatisfactory performance of the
                                            CDBG national objective.                                compliance with the requirements of 24                recipient, in the consideration of any
                                               This alternative requirement does not                CFR 570.902 and 570.494. However, as                  future grant made under title I of the
                                            limit the Secretary’s authority under                   program income to the grantees’ annual                HCD Act. Examples of requirements that
                                            section 108I of the HCD Act.                            formula CDBG programs, income                         may survive closeout include: (i)


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                          51473

                                            Closeout costs (e.g., audit costs) and                  and will need to be reviewed against                  response, prevention, or preparation
                                            costs resulting from contingent                         current program practices. The                        needs of LMI persons.
                                            liabilities described in the closeout                   Department will work in coordination                    HUD will provide advice and
                                            agreement; (ii) use of real property                    with OMB to ensure that this                          technical assistance to grantees to
                                            assisted with CDBG funds in accordance                  requirement can be fulfilled by                       facilitate compliance with this
                                            with program regulations; (iii) taking                  recipients of CARES Act funding in a                  requirement.
                                            measures that are adequate to enforce                   manner that utilizes to the greatest                  III.B.10 Citizenship Requirements
                                            and implement mandatory flood                           extent possible existing reporting
                                            insurance coverage requirements; and                    streams, providing the necessary                         Please note that the U.S. Department
                                            (iv) other provisions included in the                   transparency and accountability with                  of Homeland Security, U.S. Citizenship
                                            grant closeout agreement.                               minimal additional burden. If additional              and Immigration Services provides that
                                                                                                    reporting is necessary, further advice or             the Immigration Reform and Control
                                            III.B.8. Reporting                                                                                            Act, 8 U.S.C. 1324a et seq. prohibits
                                                                                                    technical assistance will be provided by
                                               The reporting requirements that apply                the Department.                                       employers from hiring and employing
                                            to the use of annual formula CDBG                                                                             an individual for employment in the
                                            grants also apply to CDBG–CV grants.                    III.B.9. Duplication of Benefits                      U.S. knowing that the individual is not
                                            Section 104I of the HCD Act requires                       The CARES Act requires HUD to                      authorized with respect to such
                                            that the Secretary shall, at least on an                ensure that there are adequate                        employment. This generally applicable
                                            annual basis, make such reviews and                     procedures in place to prevent any                    law also applies to CDBG grantees and
                                            audits as may be necessary or                           duplication of benefits as required by                their subrecipients and/or contractors/
                                            appropriate to determine whether the                    section 312 of the Stafford Act, as                   subcontractors (including relating to
                                            grantee has carried out its activities in               amended by section 1210 of the Disaster               employees recruited under Section 3).
                                            a timely manner, whether the grantee’s                  Recovery Reform Act of 2018 (division                 For more information, please see
                                            activities and certifications are carried                                                                     https://www.uscis.gov/i-9-central/form-
                                                                                                    D of Public Law 115–254; 42 U.S.C.
                                            out in accordance with the requirements                                                                       i-9-resources/handbook-for-employers-
                                                                                                    5121 et seq.).
                                            and the primary objectives of the HCD                                                                         m-274/10-why-employers-must-verify-
                                                                                                       Duplication of benefits occurs when                employment-authorization-and-identity-
                                            Act and other applicable laws, and
                                                                                                    Federal financial assistance is provided              of-new-employees and https://
                                            whether the grantee has the continuing
                                                                                                    to a person or entity through a program               www.uscis.gov/i-9-central/legal-
                                            capacity to carry out those activities in
                                                                                                    to address losses resulting from a                    requirements-and-enforcement.
                                            a timely manner.
                                                                                                    Federally-declared emergency or
                                            III.B.8.(a) General Reporting                           disaster, and the person or entity has                IV. Fiscal Year 2019 and Fiscal Year
                                            Requirements                                            received (or would receive, by acting                 2020 CDBG Grants
                                               Reporting requirements for CDBG–CV                   reasonably to obtain available                        IV.A. General Requirements
                                            grantees can be found at 42 U.S.C.                      assistance) financial assistance for the
                                                                                                    same costs from any other source                         Except as described in this notice or
                                            12708(a), 24 CFR 91.520, 24 CFR                                                                               other applicable waivers and alternative
                                            570.507 (entitlement), 24 CFR 570.440(j)                (including insurance), and the total
                                                                                                    amount received exceeds the total need                requirements, the statutory and
                                            (insular areas), and 24 CFR 570.491                                                                           regulatory provisions governing the
                                            (state).                                                for those costs.
                                                                                                       A grantee is required to develop and               CDBG program apply to fiscal year 2019
                                            III.B.8.(b) Additional CARES Act                        maintain adequate procedures to                       and 2020 CDBG grants, including
                                            Reporting                                                                                                     regulations at 24 CFR part 570 subpart
                                                                                                    prevent a duplication of benefits that
                                                                                                                                                          I (states), 24 CFR part 570 subparts A,
                                               Section 15011 of the CARES Act                       address (individually or collectively)
                                                                                                                                                          C, D, E, J, K, and O (entitlements), and
                                            requires that recipients of $150,000 or                 each activity or program. A grantee’s
                                                                                                                                                          24 CFR subpart F (insular areas and
                                            more of CARES Act funding submit, not                   policies and procedures are not
                                                                                                                                                          Hawaii counties).
                                            later than 10 days after the end of each                adequate unless they include, at a
                                            calendar quarter, a report containing:                  minimum: (1) A requirement that any                   IV.B. Flexibilities, Waivers, and
                                            Information regarding the amount of                     person or entity receiving CDBG–CV                    Alternative Requirements
                                            funds received; the amount of funds                     assistance (including subrecipients and                  The following rules, waivers, and
                                            obligated or expended for each project                  direct beneficiaries) must agree to repay             alternative requirements apply to fiscal
                                            or activity; a detailed list of all such                assistance that is determined to be                   year 2019 and 2020 CDBG grants. These
                                            projects or activities, including a                     duplicative; and (2) a method of                      include statutory authorities included in
                                            description of the project or activity;                 assessing whether the use of CDBG–CV                  the CARES Act and other waivers and
                                            and detailed information on any                         funds will duplicate financial assistance             alternative requirements or
                                            subcontracts or subgrants awarded by                    that is already received or is likely to be           clarifications that HUD is making for
                                            the recipient. As outlined in OMB                       received by acting reasonably to                      fiscal year 2019 and 2020 grants.
                                            memorandum M–20–21,                                     evaluate need and the resources
                                            Implementation Guidance for                             available to meet that need.                          IV.B.1. Timeliness
                                            Supplement Funding in Response to the                      Most CARES Act assistance programs                    Because of the coronavirus many local
                                            Coronavirus Disease (COVID–19)                          have more limited durations for                       governments are operating under
                                            (available at https://                                  availability of assistance or a more                  extenuating circumstances and may
                                            www.whitehouse.gov/wp-content/                          limited scope of eligible activities or               need additional time for certain
                                            uploads/2020/04/Implementation-                         entities than does CDBG–CV. HUD                       administrative requirements, HUD is




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                                            Guidance-for-Supplemental-Funding-                      strongly encourages each CDBG–CV                      suspending for fiscal year 2020 all
                                            Provided-in-Response.pdf), existing                     grantee to become familiar with the                   corrective actions, sanctions, and
                                            reporting requirements are anticipated                  range of available assistance and uses                informal consultations for timeliness
                                            to meet the requirements of Section                     and apply its more flexible CDBG–CV                   effective January 21, 2020. Grantees are
                                            15011, but the content and format for                   assistance to unmet needs or to gaps,                 advised that this suspension does not
                                            this reporting is still under development               with special attention to the coronavirus             eliminate the timely expenditure


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                                            51474                       Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices

                                            requirements set forth in 24 CFR                        a jurisdiction’s program year. The                    HCD Act and 24 CFR 570.201(e) has no
                                            570.902 (entitlements). HUD will                        waiver was granted under HUD’s                        effect on assistance available to the
                                            continue to run expenditure reports and                 regulatory waiver authority at 24 CFR                 grantee for fiscal years 2019 and 2020,
                                            will continue to notify grantees of                     5.110 and 24 CFR 91.600. Under this                   including the program income that
                                            deficiencies.                                           memorandum, for program year 2019                     would normally be included in the
                                               Based on government restrictions,                    CAPERs, the requirement that grantees                 grantee’s calculation of the program
                                            closures, shelter-in-place orders, and                  submit a performance report within 90                 income cap for fiscal years 2019 or
                                            social distancing guidance related to                   days after the close of a jurisdiction’s              2020, when the grantee uses CDBG grant
                                            coronavirus, HUD has determined that                    program year is waived, subject to the                funds to prevent, prepare for, and
                                            all entitlement grantees have factors                   condition that within 180 days after the              respond to coronavirus. For fiscal years
                                            beyond their reasonable control that, to                close of a jurisdiction’s program year the            2019 and 2020, the cap shall still be
                                            HUD’s satisfaction, impact the carrying                 jurisdiction shall submit its                         calculated and shall apply to public
                                            out of CDBG-assisted activities in a                    performance report.                                   service activities carried out for
                                            timely manner. As a result, HUD has                                                                           activities that do not prevent, prepare
                                            determined that corrective actions                      IV.B.2.(d) Other Consolidated Planning
                                                                                                                                                          for, and respond to coronavirus.
                                            related to timeliness are not appropriate               Waivers
                                                                                                                                                          Additionally, CDBG–CV grant funds
                                            at this time. HUD will monitor changing                    HUD is temporarily waiving the                     shall not be included in the public
                                            conditions. Before the end of the fiscal                requirement for consistency with the                  service cap compliance determination
                                            year, HUD will determine whether to                     consolidated plan (requirements at 42                 which is applicable to annual formula
                                            extend this suspension for all or a                     U.S.C. 12706 and 24 CFR 91.325(a)(5)                  CDBG funds used for activities not
                                            portion of fiscal year 2021. HUD may                    and 91.225(a)(5)) when fiscal year 2019               related to coronavirus.
                                            consider regional and local conditions                  and 2020 CDBG funds are used to                          Program income generated by the use
                                            when determining when to begin                          prevent, prepare for, and respond to                  of CDBG–CV grants is considered
                                            scheduling informal consultations.                      coronavirus, because grantees may not                 program income to the grantee’s annual
                                                                                                    have considered the needs associated                  formula CDBG program, as discussed in
                                            IV.B.2. Consolidated Plan, Citizen                      with this special purpose funding when                section III.B.6.(a).
                                            Participation, and CAPER                                developing their current consolidated                    The public services cap imposed by
                                            IV.B.2.(a) Expedited Citizen                            plan strategic plan and needs                         section 105(a)(8) of the HCD Act applies
                                            Participation and Virtual Hearings                      assessment. In conjunction, HUD is                    to ‘‘the amount of any assistance to a
                                              Section III.B.4.(a) of section III apply              temporarily waiving 42 U.S.C. 5304(e)                 unit of general local government (or in
                                            to all fiscal year 2019 and 2020 annual                 to the extent that it would require HUD               the case of nonentitled communities not
                                            formula CDBG grants, regardless of the                  to annually review grantee performance                more than 15 per centum statewide)
                                            use of funds. This section describes the                under the consistency criteria. These                 under this title including program
                                            program flexibilities provided by the                   waivers apply only until the grantee                  income’’ (emphasis added). The CARES
                                            CARES Act related to Expedited Citizen                  submits its next full (3–5 year)                      Act provision that removes the public
                                            Participation and Virtual Hearings.                     consolidated plan due after the 2020                  services cap applies to all ‘‘activities to
                                            Where this section refers to CDBG–CV                    program year.                                         prevent, prepare for, and respond to
                                            funds, it shall apply equally to fiscal                    HUD is imposing a related alternative              coronavirus’’ for the CDBG–CV grants
                                            years 2019 and 2020 CDBG grants.                        requirement. The regulations at 24 CFR                and fiscal year 2019 and 2020 annual
                                                                                                    91.225(b)(5) (entitlements) and 24 CFR                formula CDBG grants. The activities for
                                            IV.B.2.(b). Deadline To Submit                          91.325(b)(5) (states) require grantees to             grants are described in each grantee’s
                                            Consolidated Plans and FY 2020 Annual                   certify that the housing activities to be             annual action plan required by 24 CFR
                                            Action Plans                                            undertaken with CDBG, HOME, ESG,                      91.220 (entitlements), 24 CFR 91.320
                                               The deadline for grantees to submit                  and HOPWA funds are consistent with                   (states), or 24 CFR 570.440 and 24 CFR
                                            action plans and other updates to their                 the strategic plan portion of the                     91.235 (insular areas). In these
                                            consolidated plans submissions for                      consolidated plan. Under this                         regulations, the activities for grants
                                            fiscal years 2019 and 2020 to include                   alternative requirement, grantees are not             include activities carried out with grant
                                            CDBG–CV funds is August 16, 2021.                       required to carry out the portions of                 funds and program income expected to
                                                                                                    their fiscal year 2019 and 2020 annual                be made available. Therefore, removing
                                            IV.B.2.(c) CAPER Extension                                                                                    the cap in section 105(a)(8) of the HCD
                                                                                                    formula CDBG grants that are used to
                                              On May 7, 2020, Acting Assistant                      prevent, prepare for, and respond to                  Act for activities to prevent, prepare for,
                                            Secretary John Gibbs issued a                           coronavirus in a manner consistent with               and respond to coronavirus also
                                            memorandum to all Community                             the certifications in 24 CFR 91.225(b)(5)             removes the public services cap on the
                                            Planning and Development Field Office                   and 24 CFR 91.325(b)(5), because HUD                  use of the program income, and removes
                                            Directors, Deputy Directors and Program                 has changed the requirement related to                the corresponding regulatory cap in 24
                                            Managers with the subject ‘‘Availability                consistency.                                          CFR 570.201(e) (entitlements) for
                                            of a Waiver and Alternate Requirement                                                                         CDBG–CV funds and fiscal year 2019
                                            for the Consolidated Annual                             IV.B.3. Flexibilities That Apply to                   and 2020 funds used to prevent, prepare
                                            Performance and Evaluation Report                       Coronavirus-Related Activities                        for, and respond to coronavirus.
                                            (Performance Report) for Community                         The following flexibilities apply to all              Program income generated by the use
                                            Planning and Development (CPD) Grant                    fiscal year 2019 and 2020 CDBG grants                 of CDBG–CV grants is considered
                                            Programs in Response to the Spread of                   when those grants are used for activities             program income to the grantee’s annual
                                            Coronavirus.’’ This memorandum                          to prevent, prepare for, and respond to               formula CDBG program, as discussed in




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                                            authorized a waiver of the regulatory                   coronavirus.                                          section III.B.6.(a). Additionally, program
                                            requirement at 24 CFR 91.520(a) that                       IV.B.3.(a) Calculation of the Public               income, regardless of the source funding
                                            grantees submit a performance report                    Services Cap. As described in paragraph               of the activity that generated the
                                            known as the Consolidated Annual                        III.B.5.(f)(iii), following enactment of the          income, shall be included in the
                                            Performance and Evaluation Report                       CARES Act, the public services cap                    compliance determination of the public
                                            (CAPER) within 90 days of the end of                    described in section 105(a)(8) of the                 service cap applicable to the annual


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                                                                        Federal Register / Vol. 85, No. 162 / Thursday, August 20, 2020 / Notices                                                 51475

                                            formula CDBG grants and program                            • III.B.1. General Grant Requirements              between 8 a.m. and 5 p.m. weekdays in
                                            income, separately from CDBG–CV                            • III.B.2. Responsible Use of CARES                the Regulations Division, Office of
                                            funds. For purposes of calculating the                  Act Funds                                             General Counsel, Department of
                                            public services cap, the treatment of                      • III.B.3. Overview of Process to                  Housing and Urban Development, 451
                                            program income generated by the                         Receive CDBG–CV Grants                                7th Street SW, Room 10276,
                                            CDBG–CV grant and received (i.e.,                          • III.B.4.(b) CDBG–CV Application                  Washington, DC 20410–0500. Due to
                                            documented in IDIS) by the annual                       Content and Submission                                security measures at the HUD
                                            formula CDBG program shall be                              • III.B.5.(a) Use of Funds for CARES               Headquarters building, an advance
                                            considered as any other program income                  Act Purposes                                          appointment to review the docket file
                                            received by the annual formula CDBG                        • III.B.5.(b) Reimbursements                       must be scheduled by calling the
                                            program.                                                   • III.B.5.(c) Terms and Conditions                 Regulations Division at 202–708–3055
                                              IV.B.3.(b) Provisions in Section III that             Made Applicable by the CARES Act                      (this is not a toll-free number). Hearing-
                                            apply to Coronavirus-Related Activities.                   • III.B.5.(d)(iv) Overall Benefit to LMI           or speech-impaired individuals may
                                            The following provisions in Section III                 Persons.                                              access this number through TTY by
                                            apply to the use of fiscal year 2019 and                   • III.B.6.(a) Program Income                       calling the Federal Relay Service at 800–
                                            2020 CDBG funds for activities to                          • III.B.6.(b) Rules Applicable to State            877–8339 (this is a toll-free number).
                                            prevent, prepare for, and respond to                    CDBG–CV Grants
                                            coronavirus; these provisions shall also                   • III.B.6.(c) Rules for Entitlements,              John Gibbs,
                                            apply to the use of Section 108                         Insular Areas, and Nonentitlement                     Assistant Secretary for Community Planning
                                            guaranteed loan funds when they are                     Hawaii Counties                                       and Development.
                                                                                                       • III.B.6.(d)(ii) Clarifying note on the           [FR Doc. 2020–18242 Filed 8–19–20; 8:45 am]
                                            used together with fiscal year 2019 and
                                                                                                    process for environmental release of                  BILLING CODE 4210–67–P
                                            2020 CDBG funds for activities to
                                                                                                    funds when a state carries out activities
                                            prevent, prepare for, and respond to
                                                                                                    directly.
                                            coronavirus. Where these paragraphs
                                                                                                       • III.B.6.(e) Compliance with Labor                DEPARTMENT OF THE INTERIOR
                                            refer to CDBG–CV funds, they shall
                                                                                                    Laws
                                            apply equally to fiscal years 2019 and
                                                                                                       • III.B.6.(f) Relationship to Section              [FWS–R4–ES–2020–N106;
                                            2020 CDBG grants.                                                                                             FVHC98220410150–XXX–FF04H00000]
                                                                                                    108 Loan Guarantees
                                              • III.B.5.(d)(i) Use of Urgent Need
                                                                                                       • III.B.7. Period of Performance,
                                            National Objective.                                                                                           Louisiana Trustee Implementation
                                                                                                    Timeliness, and Closeout
                                              • III.B.5.(d)(ii) Modification of                                                                           Group Deepwater Horizon Oil Spill
                                                                                                       • III.B.8. Reporting
                                            Location-Based Presumption of LMI                          Paperwork Reduction Act: The                       Draft Restoration Plan and
                                            Benefit for Job Creation and Retention                  information collection requirements in                Environmental Assessment #7:
                                            National Objective Criteria.                            this notice have been approved by the                 Wetlands, Coastal, and Nearshore
                                              • III.B.5.(d)(iii) LMI Job Creation and                                                                     Habitats; and Birds
                                                                                                    Office of Management and Budget
                                            Retention Records.
                                                                                                    (OMB) under the Paperwork Reduction                   AGENCY: Department of the Interior.
                                              • III.B.5.(e)(i) Elimination of
                                                                                                    Act of 1995 (44 U.S.C. 3501–3520) and                 ACTION: Notice of availability; request
                                            Aggregate Public Benefit Test.
                                              • III.B.5.(e)(ii) Modification of                     assigned OMB Control Number 2506–                     for public comments.
                                            Individual Public Benefit Standards.                    0085. In accordance with the Paperwork
                                                                                                    Reduction Act, HUD may not conduct or                 SUMMARY: In accordance with the Oil
                                              • III.B.5.(f)(i) Extension of Emergency
                                                                                                    sponsor, and a person is not required to              Pollution Act of 1990 (OPA); the
                                            Payments.
                                              • III.B.5.(f)(ii) Opportunity Zones and               respond to, a collection of information               National Environmental Policy Act of
                                            Related Flexibilities for Economic                      unless the collection displays a                      1969 (NEPA); the Final Programmatic
                                            Development.                                            currently valid OMB control number.                   Damage Assessment Restoration Plan
                                              • III.B.5.(f)(iii) Public Services Cap.                  Catalog of Federal Domestic                        and Final Programmatic Environmental
                                              • III.B.5.(f)(iv) Other Public Services               Assistance: The Catalog of Federal                    Impact Statement (Final PDARP/PEIS)
                                            Considerations.                                         Domestic Assistance numbers for the                   and Record of Decision; and the Consent
                                              • III.B.5.(f)(v) Clarification on                     CDBG–CV grants under the CARES Act                    Decree, the federal and state natural
                                            Application of Cost Principles.                         are: 14.218 (Community Development                    resource trustee agencies for the
                                              • III.B.6.(d)(iii) Clarifying note on                 Block Grants/Entitlement Grants);                     Louisiana Trustee Implementation
                                            emergency environmental review                          14.225 (Community Development Block                   Group (LA TIG) have prepared the
                                            procedures.                                             Grants/Special Purpose Grants/Insular                 Louisiana Trustee Implementation
                                              • III.B.9. Duplication of Benefits                    Areas); and 14.228 (Community                         Group Draft Restoration Plan #7 and
                                            (applies for programs and activities with               Development Block Grants/State’s                      Environmental Assessment: Wetlands,
                                            annual formula CDBG funds when the                      Program and Non-Entitlement Grants in                 Coastal and Nearshore Habitats; and
                                            grantee uses these funds to carry out                   Hawaii) (formerly CDBG Grant/Small                    Birds (RP/EA #7). In the Draft RP/EA #7,
                                            programs to respond to losses caused by                 Cities Program).                                      the LA TIG proposes projects to help
                                            disasters and emergencies).                                Environmental Impact: A Finding of                 restore bird habitat and marshes injured
                                              • III.B.10. Citizenship Requirements.                 No Significant Impact (FONSI) with                    as a result of the Deepwater Horizon
                                                                                                    respect to the environment has been                   (DWH) oil spill in the Louisiana
                                            IV.B.4. Provisions That Do Not Apply to                 made in accordance with HUD                           Restoration Area under the ‘‘Wetlands,
                                            FY 19 and FY 20 Grants                                  regulations at 24 CFR part 50, which                  Coastal and Nearshore Habitats’’ and
                                               Waivers and alternative requirements                 implement section 102(2)(C) of the                    ‘‘Birds’’ restoration types described in




jbell on DSKJLSW7X2PROD with NOTICES
                                            and other provisions in the following                   National Environmental Policy Act of                  the Final PDARP/PEIS. The
                                            paragraphs of Section III do not apply to               1969 (42 U.S.C. 4332(2)(C)). The FONSI                approximate cost to implement the LA
                                            fiscal year 2019 CDBG Grants and fiscal                 is available for inspection at HUD’s                  TIG’s proposed project with five
                                            year 2020 CDBG grants:                                  Funding Opportunities web page at:                    preferred alternatives is $234,100,000.
                                               • III.A. Allocations of CDBG–CV                      https://www.hud.gov/grants/. The                      We invite public comments on the Draft
                                            Funds                                                   FONSI is available for public inspection              RP/EA #7.


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