Modification of the Statutory and Regulatory Waivers Granted to New York State for Recovery from the September 11, 2001, Terrorist Attacks

AGENCY:

Office of Community Planning and Development, HUD.

ACTION:

Notice of waivers granted.

SUMMARY:

This notice advises the public of modifications of the waivers of regulations and statutory provisions granted to the State of New York for the purpose of assisting in the recovery from the September 11, 2001, terrorist attacks on New York City. This notice describes an eligibility waiver and a change to alternative requirements related to public benefit documentation for the Empire State Development Corporation's retail recovery grant (RRG) program.

DATES:

Effective Date: April 19, 2004.

FOR FURTHER INFORMATION CONTACT:

Jan C. Opper, Senior Program Officer, Office of Block Grant Assistance, Department of Housing and Urban Development, Room 7286, 451 Seventh Street, SW., Washington, DC 20410-7000, telephone number (202) 708-3587. Persons with hearing or speech impairments may access this number through TTY by calling the Federal Information Relay Service at (800) 877-8339. Fax inquiries may be sent to Mr. Opper at (202) 401-2044. (Except for the “800” number, these telephone numbers are not toll-free.)

SUPPLEMENTARY INFORMATION:

Authority to Grant Waivers

The three grants covered by this notice are governed by provisions of the fifth proviso under the 2001 Emergency Supplemental Appropriations Act for Recovery from and Response to Terrorist Attacks on the United States (Pub. L. 107-38, approved September 18, 2001); by section 434 of the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 2002 (Pub. L. 107-73, approved November 26, 2001) (FY 2002 HUD Appropriations Act); by chapter 13 of division B of the Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act, 2002 (Pub. L. 107-117, approved January 10, 2002) (FY 2002 Department of Defense Appropriation); and by the 2002 Supplemental Appropriations Act for Further Recovery From and Response to Terrorist Attacks on the United States (Pub. L. 107-206, approved August 2, 2002) (FY 2002 Recovery and Response to Terrorist Attacks Supplemental).

The third proviso of section 434 of the FY 2002 HUD Appropriations Act, and the FY 2002 Supplemental, authorize the Secretary to waive, or specify alternative requirements for, any provision of any statute or regulation that the Secretary administers in connection with the obligation by the Secretary or use by the recipient of these grant funds, except for requirements related to fair housing, nondiscrimination, labor standards, and the environment.

The Department finds that the following waivers and alternative requirements (together with previously granted waivers and alternative requirements) are necessary to facilitate the use of the $700 million awarded to New York State's Empire State Development Corporation (ESDC) and the $2.0 billion and $783 million awarded to New York State's Lower Manhattan Development Corporation (LMDC) (collectively, the grantees).

The Department also finds that such uses of funds, as described below, are not inconsistent with the overall purpose of the Housing and Community Development Act of 1974, as amended, or the Cranston-Gonzalez National Affordable Housing Act, as amended.

Except as noted by published waivers and alternative requirements, statutory and regulatory provisions governing the Community Development Block Grant program for states, including those at 24 CFR subpart I, shall apply to the use of these funds. In Federal Register notices published March 18, 2002 (67 FR 12042, and effective March 25, 2002), May 22, 2002 (67 FR 36017, and effective May 28, 2002), and May 16, 2003, (68 FR 26640, and effective May 21, 2003), the Department promulgated waivers and alternative requirements necessary to facilitate the use of the $700 million in disaster recovery funds awarded to New York State's Empire State Development Corporation and the $2.0 billion and $783 million awarded to New York State's Lower Manhattan Development Corporation.

Eligibility waiver. This notice waives requirements at 42 U.S.C. 5305(a) to the extent necessary to allow new construction of housing, including affordable housing. HUD is taking this action because the grantee, after consultation with citizens, has determined that additional housing units will support its disaster recovery and economic revitalization efforts and is developing an Action Plan including an activity to support new housing construction.

RRG Program. This notice also modifies the published alternate requirements related to reports and documentation for the retail recovery grant (RRG) program implemented by Empire State Development Corporation in the immediate wake of the disaster. ESDC established the RRG immediately after September 11, 2001, in an effort to expedite financial assistance to those small retail businesses in lower Manhattan that were affected by the attack on the World Trade Center. The program provided grant funding to eligible businesses based on a percentage of their gross revenue figures, reflecting three days of business activity. Because this program was established so soon after the September 11, 2001, disaster, prior to New York State's award of HUD CDBG disaster assistance funding, ESDC did not collect all of the information that is now required by HUD for certain programs implemented thereafter. The application for the RRG program collected information sufficient to meet core CDBG requirements related to a special economic development activity undertaken under the urgent need national objective, but the program was implemented so rapidly that it predated the additional requirements of the referenced notices related to documentation of salary ranges and job types. HUD approved the action plan containing the RRG activity and is now clarifying in this notice what documentation requirements apply.

The text below indicates the paragraphs being updated.

Description of Modifications

1. A new paragraph 21 is added to the requirements of the notice published on May 22, 2002 (67 FR 36017) by adding text to read as follows:

21. New construction of housing. Limitations of 42 U.S.C. 5305(a) are waived to the extent necessary to allow new construction of housing as an eligible use of funds.

2. Paragraph 1 of the notice published on May 16, 2003 (68 FR 26640), which modified Paragraphs 12 and 16 of the notice published on May 22, 2002 (67 FR 36017), is amended to read as follows:

12. Public benefit standards for economic development activities. Currently, grantees are limited in the amount of CDBG assistance they may spend per job retained or created, or per low- and moderate-income person to which goods or services are provided by the activity, that will be considered to meet public benefit standards. Public benefit standards at 42 U.S.C. 5305(e)(3) and 24 CFR 570.482(f)(1), (2), (3), (4)(i), (5), and (6) are waived, except that, the grantee shall report and maintain documentation on the creation and retention of (a) total jobs, (b) number of jobs within certain salary ranges, and (c) types of jobs. For the Bridge Loan program included in the Empire State Development Corporation's January 30, 2002, Action Plan and for the Retail Recovery Grant program, the grantee shall report and maintain public benefit documentation only on the total number of jobs created and retained. Paragraph (g) of 24 CFR 570.482, regarding amendments to economic development projects after review determinations, is also waived to the extent its provisions are related to public benefit.

16. Performance reports. Generally, grantees submit an annual performance report ninety days after the jurisdiction's program year. The conferees for Pub. L. 107-73 directed that HUD submit reports to the Committees on Appropriations quarterly on the obligation and expenditure of the CDBG funds appropriated under the Emergency Response Fund. Therefore, 42 U.S.C. 12708(a)(1) and 24 CFR 91.520 are waived with respect to these funds, and HUD is establishing an alternative requirement that the State must submit a quarterly report, as HUD prescribes, no later than 30 days following each calendar quarter, beginning after the first full calendar quarter after grant award and continuing until all funds have been expended and that expenditure reported. Each quarterly report will include information on the project name, activity, location, national objective, funds budgeted and expended, Federal source and funds (other than CDBG disaster funds), numbers and North American Industry Classification System (NAICS) codes of businesses assisted by activity, total number of jobs created and retained by activity, numbers of such jobs by salary ranges (to be defined by HUD), numbers of properties and housing units assisted; for activities benefiting low- and moderate-income persons, the number of jobs taken by persons of low- and moderate-income, and numbers of low- and moderate-income households benefiting. For the Bridge Loan program included in the Empire State Development Corporation's January 30, 2002, Action Plan, and for the Retail Recovery Grant program, the grantee is not required to report by salary ranges on the numbers of created and retained jobs. Quarterly reports must be submitted using HUD's web-based Disaster Recovery Grant Reporting system. Annually (i.e., with every fourth submission), the report shall include a financial reconciliation of funds budgeted and expended, and calculation of the status of administrative costs.

Section 434 of the FY 2002 HUD Appropriations Act requires HUD to publish these waivers in the Federal Register no later than five days before their effective date. The effective date of these waivers is April 19, 2004.