Rule2023-09693
Economic Growth Regulatory Relief and Consumer Protection Act: Implementation of National Standards for the Physical Inspection of Real Estate (NSPIRE)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 11, 2023
Effective
July 1, 2023
Issuing agencies
Housing and Urban Development Department
Abstract
This final rule establishes a new approach to defining and assessing housing quality: The National Standards for the Physical Inspection of Real Estate (NSPIRE). This rule is part of a broad revision of the way HUD-assisted housing is inspected and evaluated. The purpose of NSPIRE is to strengthen HUD's physical condition standards and improve HUD oversight through the alignment and consolidation of the inspection regulations used to evaluate HUD housing across multiple programs. This final rule also incorporates provisions of the Economic Growth and Recovery, Regulatory Relief and Consumer Protection Act that will reduce administrative burden on small rural public housing authorities (PHAs).
Full Text
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<title>Federal Register, Volume 88 Issue 91 (Thursday, May 11, 2023)</title>
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[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Rules and Regulations]
[Pages 30442-30506]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09693]
[[Page 30441]]
Vol. 88
Thursday,
No. 91
May 11, 2023
Part III
Department of Housing and Urban Development
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24 CFR Parts 5, 92, 93, et al.
Economic Growth Regulatory Relief and Consumer Protection Act:
Implementation of National Standards for the Physical Inspection of
Real Estate (NSPIRE); Final Rule
Federal Register / Vol. 88 , No. 91 / Thursday, May 11, 2023 / Rules
and Regulations
[[Page 30442]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 5, 92, 93, 200, 570, 574, 576, 578, 882, 884, 886,
902, 965, 982, 983, and 985.
[Docket No. FR-6086-F-03]
RIN 2577-AD05
Economic Growth Regulatory Relief and Consumer Protection Act:
Implementation of National Standards for the Physical Inspection of
Real Estate (NSPIRE)
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, Office of the Assistant Secretary for Community Planning
and Development, Office of the Assistant Secretary for Public and
Indian Housing, U.S. Department of Housing and Urban Development (HUD).
ACTION: Final rule.
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SUMMARY: This final rule establishes a new approach to defining and
assessing housing quality: The National Standards for the Physical
Inspection of Real Estate (NSPIRE). This rule is part of a broad
revision of the way HUD-assisted housing is inspected and evaluated.
The purpose of NSPIRE is to strengthen HUD's physical condition
standards and improve HUD oversight through the alignment and
consolidation of the inspection regulations used to evaluate HUD
housing across multiple programs. This final rule also incorporates
provisions of the Economic Growth and Recovery, Regulatory Relief and
Consumer Protection Act that will reduce administrative burden on small
rural public housing authorities (PHAs).
DATES: This final rule is effective July 1, 2023, except amendments to
the following parts, which are effective October 1, 2023: 24 CFR part
92 (instructions 4 through 7); 24 CFR part 93 (instructions 9 and 10);
24 CFR part 200 (instructions 12 and 13); 24 CFR part 570 (instruction
15); 24 CFR part 574 (instruction 17); 24 CFR part 576 (instruction
19); 24 CFR part 578 (instruction 21); 24 CFR part 882 (instructions 23
and 24); 24 CFR part 884 (instruction 26); 24 CFR part 886
(instructions 29 through 31); 24 CFR part 982 (instructions 45 through
55); 24 CFR part 983 (instructions 57 through 61); and 24 CFR part 985
(instructions 62 through 65). For more information, see SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT: Tara J. Radosevich, Real Estate
Assessment Center, Office of Public and Indian Housing, Department of
Housing and Urban Development, 550 12th Street SW, Suite 100,
Washington, DC 20410-4000, telephone number 202-708-1112 (this is not a
toll-free number), <a href="/cdn-cgi/l/email-protection#a0eef3f0e9f2e5f2c5c7d5ccc1d4c9cfced3e0c8d5c48ec7cfd6"><span class="__cf_email__" data-cfemail="6d233e3d243f283f080a18010c190402031e2d051809430a021b">[email protected]</span></a>. HUD welcomes and is
prepared to receive calls from individuals who are deaf or hard of
hearing, as well as individuals with speech or communication
disabilities. To learn more about how to make an accessible telephone
call, please visit: <a href="https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs">https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs</a>.
SUPPLEMENTARY INFORMATION:
Effective Dates
This rule has two effective dates:
1. Amendments to 24 CFR parts 5, 902, and 965 are effective on July
1, 2023. These amendments implement the NSPIRE regulations at 24 CFR
part 5, subpart G and affect the Public Housing regulations.
2. Amendments to 24 CFR parts 92, 93, 200, 570, 574, 576, 578, 882,
884, 886, 982, 983 and 985 are effective on October 1, 2023. These
amendments affect the Multifamily Housing regulations, the Housing
Choice Voucher regulations, the Project-Based Voucher regulations,
Section 8 Moderate Rehabilitation regulations and the Community
Planning and Development (CPD) programs such as HOME Investment
Partnerships Program (HOME), the Housing Trust Fund (HTF), Housing
Opportunities for Persons with AIDS (HOPWA), Emergency Solution Grants
(ESG) and Continuum of Care (COC) regulations. Participants and owners
subject to these regulations are subject to the Code of Federal
Regulations as it exists on the publication date of this rule, and are
not subject to the regulatory changes being made by this rule on July
1, 2023, until October 1, 2023.
I. Background
On January 13, 2021, HUD published the ``Economic Growth Regulatory
Relief and Consumer Protection Act: Implementation of National
Standards for the Physical Inspection of Real Estate (NSPIRE)''
proposed rule (``proposed rule'') in the Federal Register.\1\ In the
NSPIRE proposed rule, HUD proposed to align and consolidate its
inspection standards and procedures and incorporate provisions of the
Economic Growth and Recovery, Regulatory Relief and Consumer Protection
Act (Pub. L. 115-174) for all of HUD's programs. Specifically, HUD
proposed to revise 24 CFR part 5 to become the focal point of
consolidated standards, and proposed changes to other regulations to
cross-reference to the new streamlined part 5 standards.
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\1\ 86 FR 2582.
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The proposed rule also sought to consolidate, update, and improve
the Housing Quality Standards (HQS) and the Uniform Physical Condition
Standards (UPCS) to prevent standards and procedures from becoming out
of date. In addition, the rule proposed to implement the Economic
Growth and Recovery, Regulatory Relief and Consumer Protection Act
(``Economic Growth Act'') to implement an alternate performance
indicator and rating system for the Public Housing Assessment System
(PHAS) and Section 8 Management Assessment Program (SEMAP).
HUD's proposed rule and this final rule were informed by HUD's
NSPIRE Demonstration. On August 21, 2019, HUD established through
notice \2\ the implementation of the NSPIRE demonstration to develop a
new inspection model for HUD programs. Through the demonstration, HUD
built updated standards, procedures, and scoring methodologies. The
NSPIRE Standards and procedures for the demonstration were first
published on HUD's website in August 2019 and were subject to and
improved through stakeholder feedback and test inspections. The
Demonstration will continue for enrolled properties until
implementation of this rule for the relevant program, or as otherwise
announced by notice.
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\2\ ``Notice of Demonstration To Assess the National Standards
for the Physical Inspection of Real Estate and Associated
Protocols,'' 84 FR 43536.
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For additional background, please see the proposed rule.
II. NSPIRE Final Rule and NSPIRE Notices
Consistent with the proposed rule, this final rule will create a
unified inspection protocol for three different overarching programs:
programs for housing assisted under the U.S. Housing Act of 1937 other
than section 8 of the Act (``public housing''), programs previously
under the Housing Quality Standards regulations at 24 CFR 982.401 (HQS
regulations), and programs previously covered under 24 CFR part 5,
subpart G (``Multifamily housing''). CPD programs and regulations are
included because these programs pointed to the HQS program regulations.
This final rule maintains a regulatory framework that streamlines,
consolidates, and aligns inspection standards over 14 sections of
regulations for HUD's programs. This new framework for inspection
focuses on inside the building, outside the building and
[[Page 30443]]
within the units of HUD housing and ensures that they are
``functionally adequate, operable, and free of health and safety
hazards.'' Because of the scope of changes to the inspection process,
HUD is setting a different implementation date for HUD's programs to
create as smooth a transition as possible.
A. Implementation Timeline
This rule will be implemented in two phases. On July 1, 2023,
Public Housing will transition to NSPIRE. On October 1, 2023, the
Multifamily Housing programs, Housing Choice Voucher (``HCV'') and
Project Based Voucher (``PBV'') programs, and the CPD programs included
in this rulemaking will transition to NSPIRE.
Public Housing regulations will be amended on July 1, 2023, and
Public Housing program participants will be required to comply with
this final rule and use the NSPIRE standards starting July 1, 2023. HUD
will prioritize PHAs with a fiscal year end of June 30, 2023, to
receive their next inspection under the updated regulations. Because
the universe of Public Housing properties is smaller than those
participating in Multifamily Housing programs, HUD is better able to
prioritize and complete inspections of these properties first under
NSPIRE, and then launch inspections in Multifamily Housing programs in
October.
The Housing Choice Voucher (HCV), Project Based Voucher (PBV),
Section 8 Moderate Rehabilitation Program, HOME, HTF, HOPWA, ESG and
CoC regulations will be amended on October 1, 2023, and program
participants will be required to comply with this final rule and begin
using the NSPIRE standards on October 1, 2023. These programs are
unique because inspections are done by PHAs, program participants, and
participating jurisdictions (PJs) and not by HUD. These entities will
need additional time to update forms and implement technological
solutions. Therefore, programs that follow HQS will continue to follow
HQS and will not need to comply with these regulations until October 1,
2023.
The Multifamily Housing programs will also begin to use the NSPIRE
standards starting on October 1, 2023. After Uniform Physical Condition
Standards (UPCS) inspections were delayed due to the COVID-19 pandemic,
HUD has committed to providing Multifamily Housing program participants
one more UPCS inspection before the transition to NSPIRE. HUD intends
to meet this goal by the end of the 2023 Federal fiscal year.
Therefore, HUD will transition Multifamily Housing programs to NSPIRE
on October 1, 2023. Part 5, subpart G, as it existed before this rule,
provided at Sec. 5.703 for the physical condition standards for
Multifamily Housing and authorized HUD at Sec. 5.705 to establish UPCS
through notice. On July 1, 2023, when Public Housing transitions to
NSPIRE, these regulations will be overwritten by the new part 5,
subpart G. To enable Multifamily to continue using UPCS, HUD will delay
the effective date for Multifamily Housing such that Multifamily
Housing program participants are not subject to the new part 5, subpart
G until October 1, 2023. Part 5, subpart G as it exists on the
publication date of this rule, prior to the changes which will be made
on July 1, 2023, will apply to Multifamily Housing until September 30,
2023.
Further transition information will be provided in three core
``Subordinate Notices'' which will follow this final rule. These core
Subordinate Notices are the NSPIRE Standards notice, the NSPIRE Scoring
notice, and the NSPIRE Administrative notice. HUD will also issue
additional notices on the NSPIRE Standards for the HOME, HTF, ESG,
HOPWA, and CoC programs. PIH will issue additional Departmental notices
to implement the Small Rural Assessment requirements under part 902,
subpart H and part 985. The function of each of these notices is
provided in more detail below. All updated Standards and Scoring
methodologies will be published--as required by this rule--through a
Federal Register notice at least once every 3 years with the
opportunity for public comment prior to implementation.
B. NSPIRE Standards Subordinate Notice
This rulemaking establishes at 24 CFR 5.705(a) that HUD will
establish Standards through a subordinate Federal Register notice. HUD
proposed standards through notice in the Federal Register with request
for comments on June 17, 2022 (``Proposed NSPIRE Standards
notice'').\3\ These proposed standards were developed in consideration
of the NSPIRE Demonstration and feedback received in response to that
demonstration. The notice sought comments on the proposed NSPIRE
Standards and included thirteen specific questions for public input,
including questions related to mold, safe drinking water, requirements
for a permanent heating source, minimum temperature, electrical
outlets, deficiency correction time frames, and pest infestation. The
individual NSPIRE Standards, posted on HUD's website,\4\ provided
detailed descriptions of housing components and hazards for inspection
with descriptions of potential deficiencies and correction timeframes.
The notice also proposed an update to the list of life-threatening
conditions covered by the Housing Opportunity Through Modernization Act
of 2016 (``HOTMA''). The comment period for the Proposed NSPIRE
Standards notice closed on August 1, 2022. HUD will publish the final
NSPIRE Standards notice before the effective date of this rule, which
will consider feedback received in the NSPIRE proposed rule, the NSPIRE
Demonstration, and the proposed NSPIRE Standards.
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\3\ ``Request for Comments: National Standards for the Physical
Inspection of Real Estate and Associated Protocols,'' 87 FR 36426.
\4\ Available at: <a href="http://www.hud.gov/sites/dfiles/PIH/documents/6092-N-02nspire_propose_standards.pdf">www.hud.gov/sites/dfiles/PIH/documents/6092-N-02nspire_propose_standards.pdf</a>.
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C. NSPIRE Scoring and Administrative Subordinate Notices
This rulemaking establishes at 24 CFR 5.705(b) that HUD will
establish scoring methods through a Federal Register notice. The
proposed NSPIRE Scoring notice was published in the Federal Register on
March 28, 2023.\5\ It will be final and effective before HUD begins
inspections under NSPIRE. The NSPIRE Scoring notice will outline the
methodology for weighting the deficiencies found during inspections
using the NSPIRE Standards notice and scoring those deficiencies for
each program . It will discuss the gradations and severity levels of
the new scoring system, including thresholds for potential enforcement
action.
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\5\ 88 FR 18268.
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The NSPIRE Administrative notice will be published as a final
notice shortly following this final rule. This notice will replace all
UPCS guidance that HUD's Real Estate Assessment Center (REAC)
previously issued including the Compilation Bulletin for RAPID 4.0,
Version 3, Inspector Notices, and other web-based guidance on
requesting appeals, exigent health and safety reporting, and other
inspection process topics. This subordinate notice will outline the
updated NSPIRE process for inspections, submitting evidence of
deficiency correction, technical reviews, administrative referrals and
other administrative requirements changing with the final NSPIRE rule.
It will also include the process HUD will use to gather resident
feedback on property conditions. In an additional notice, HUD will
provide
[[Page 30444]]
guidance for PHAs on the new small rural assessment processes.
D. NSPIRE Implementation and PHAS Score Transition for Public Housing
Authorities
With the implementation of the NSPIRE rule, REAC will begin
performing physical inspections using the NSPIRE Standards after the
effective date of the rule for each program. Recognizing that there may
be operational or system transition issues in the initial year of
NSPIRE implementation, HUD is specifying in the regulation at Sec.
5.705(c)(1) that an inspection ``shall be conducted no earlier than 6
months before and no later than 6 months after the date marking the
anniversary of the previous inspection'' for a period of one year after
the effective date of this rule. After this transition period, the time
frame will return to ``no earlier than 3 months before and no later
than 3 months after the date marking the anniversary of the previous
inspection'' or at a time period approved by HUD upon a PHA's or
owner's good cause request.
For PHAS scores issued after this rule is effective, REAC will use
scores calculated as described in the subordinate NSPIRE Scoring notice
and aggregate these scores on a unit-weighted basis as described in
Sec. 902.25 to create the Physical Assessment Sub-system (PASS)
indicator score. Additional information about NSPIRE and PHAS Score
transition, including PHAs rated as Troubled, will be provided in the
subordinate NSPIRE Administrative notice.
E. Other NSPIRE Notices
HUD's Office of Community Planning and Development will issue
separate notices before October 1, 2023, (``CPD NSPIRE notices'') to
implement the rule for the individual programs, which generally do not
adopt the methods in the three ``core'' Subordinate Notices discussed
above, and provide guidance for how the NSPIRE Standards cover
differing CPD program situations, such as homebuyer acquisition or
where assistance is tied to a bedroom in shared housing. These notices
will be published before the effective date of the rule. Also with this
rule, HUD will issue a Departmental notice to provide guidance for the
Small Rural PHAS and SEMAP scoring processes. At a later date, HUD will
publish a third additional notice to implement a process for collecting
and utilizing resident feedback as part of the inspection process.
III. Changes Made at the Final Rule Stage
In response to public comments, and in further consideration of
issues addressed at the proposed rule stage, HUD is publishing this
final rule with the following changes from the proposed rule.
Section 5.703 National Standards for the Condition of HUD Housing
Affirmative Requirements at Sec. 5.703
In the proposed rule, HUD requested comment on the addition of
affirmative requirements for ground-fault circuit interrupter (GFCI)
outlets, an arc-fault circuit interrupter (AFCI); heating, ventilation,
and air conditioning (HVAC) related to a permanent heating source;
guardrails; and interior lighting. The final rule includes requirements
for GFCI outlets near a water source, a permanent heating source for
certain climate zones, guardrails, and permanent lighting in some
living areas. In some cases, these requirements only apply to habitable
rooms of the unit. HUD defines a habitable room as it is typically
defined in model codes: a room in a building for living, sleeping,
eating, or cooking, but excluding bathrooms, toilet rooms, closets,
hallways, storage or utility spaces, and similar areas. Additional
detail on the affirmative requirements will be provided in the NSPIRE
Standards and Administrative notices. HUD makes the following changes
from the proposed rule to the NSPIRE affirmative requirements:
Application of Affirmative Requirements to Inside and Outside at Sec.
5.703(b) and (c)
In this final rule, HUD is clarifying that some of the affirmative
requirements not only apply to ``Units'' but also apply to Inside and
Outside requirements. This final rule applies the requirements for
smoke detectors, carbon monoxide detectors, GFCI outlets, guardrails,
and lighting to Inside, and applies the requirements for GFCI outlets
and guardrails to Outside. HUD also added pipes to the non-exhaustive
list of components that provide domestic water in Sec. 5.703(b).
Smoke Detector Requirement at Sec. 5.703(b)(1) and (d)(3)
In the proposed rule, HUD proposed to require that properties
follow the National Fire Protection Association Standard (NFPA) 72 or
successor standards, consistent with existing statutory obligations.
This final rule removes the reference to NFPA 72 and instead lists
requirements consistent with NFPA 72. HUD also provides that following
these requirements satisfies the specifications of NFPA 72. HUD also
adds that properties must follow these standards and additional
standards established by HUD through Federal Register notification.
This clarifies that HUD may adjust its Standards to include additional
requirements in the future, such as future added statutory
requirements.
Safe Water Requirement at Sec. 5.703(d)(1)
HUD is removing the requirement that water be ``potable'' from the
proposed rule and instead requiring that water must be ``safe.'' After
consideration of comments and further deliberation, HUD believes that
these two words are, for the purposes of this rule, duplicative and it
is not necessary to use both. HUD is also clarifying that this ``safe''
requirement applies to drinking water in the kitchen and bathroom and
clarifies that the requirement that the unit have ``hot and cold''
running water applies in both the bathroom and the kitchen.
Sanitary Facility and Kitchen Area Requirements at Sec. 5.703(d)(2) &
(d)(4)
In the proposed rule, HUD requested comment on whether to define a
``sanitary facility'' and ``kitchen area.'' After considering comments,
HUD has included additional language in the regulations for both terms
at the final rule stage; this new language serves the same function as
the definition suggested in the proposed rule for comment. HUD is
requiring that sanitary facilities (or bathrooms) include a sink, a
bathtub or shower, and an interior flushable toilet. HUD is removing
the requirement that the sanitary facility be ``adequate for personal
hygiene and the disposal of human waste'' because listing these
elements adequately covers this same requirement. HUD is also requiring
that kitchens must include a sink, cooking appliance, refrigerator,
food preparation area, and food storage area.
Removal of the Occupancy Requirement Related to Children of the
Opposite Sex From Sec. 5.703(d)(5)
In this final rule, HUD is removing the requirement at Sec.
5.703(d)(5) for units assisted under HCV or PBV that children of
opposite sex may not be required to occupy the same bedroom or living/
sleeping room. HUD views the restriction based on gender to be
unnecessary and unrelated to physical conditions, and wanted to provide
more flexibility to families and PHAs to determine the number of
bedrooms needed as part of determining the payment standard. Removal of
the term
[[Page 30445]]
``opposite sex'' is also consistent with the January 20, 2021,
Executive Order on ``Preventing and Combating Discrimination on the
Basis of Gender Identity or Sexual Orientation.'' This language also
avoids the implication that PHAs must inquire about gender identity to
determine occupancy.
Addition of Carbon Monoxide Detection Requirement at Sec. 5.703(d)(6)
Section 101, ``Carbon Monoxide Alarms or Detectors in Federally
Assisted Housing'' of Title I of Division Q, Financial Services
Provisions and Intellectual Property, of the Consolidated
Appropriations Act, 2021, Public Law 116-260, 134 Stat. 2162 (2020)
(``2021 Consolidated Appropriations Act'') included amendments to
sections 3(a) and 8 of the United States Housing of 1937 (42 U.S.C.
1437a(a) and 42 U.S.C. 1437f) (1937 Act), section 202(j) of the Housing
Act of 1959 (12 U.S.C. 1701q(j)), and Section 811(j) and 856 of the
Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 8013(j)
and 42 U.S.C. 12905). These amendments, which took effect on December
27, 2022, concern the installation of Carbon Monoxide alarms or
detectors in public housing owned or operated by a PHA, dwelling units
occupied by individuals with Housing Choice Vouchers, dwelling units
assisted with project-based vouchers or project based rental
assistance, dwelling units assisted under the 202 and 811 programs, and
dwelling units assisted under the HOPWA program. In the proposed rule,
HUD stated its intent to publish a separate proposed rule concerning
the implementation of requirements to install carbon monoxide detectors
in HUD-assisted and -insured Housing. HUD is still considering a
proposed rule which would implement carbon monoxide detectors beyond
what is now required by statute. In this rule, however, HUD has
determined to make conforming changes so that the regulations of the
programs covered by NSPIRE include the new statutory carbon monoxide
detector requirement for each program. Because these conforming rule
changes merely codify the new statutory requirements, HUD has
determined that additional notice and public comment procedure is
unnecessary.
Additionally, HUD notes that the 2021 Consolidated Appropriations
Act only adds carbon monoxide-related requirements to the HUD programs
listed above and the USDA programs authorized by sections 514 and 515
of the Housing Act of 1949. HUD programs such as HUD-insured housing
not subject to an assistance contract and the ESG, CoC, HOME, and HTF
programs are not subject to statutory requirements concerning carbon
monoxide detection. HUD has made corresponding changes at the final
rule stage in Sec. Sec. 92.251(b)(1)(viii), 93.301(b)(1)(viii),
576.403(c), 578.75(b) to clarify that these units will not be subject
to the new carbon monoxide requirements. HUD urges grantees, owners,
developers, and project sponsors in these programs to take action for
the safety of residents and reminds them that there may be additional
property standard requirements under applicable State and local laws
regarding carbon monoxide detection.
Finally, HUD notes that this final rule only implements the
statutory carbon monoxide detector requirement for programs covered
under NSPIRE. However, programs not covered by NSPIRE are still subject
to the statutory requirement where applicable. Specifically, the
statutory requirement covers all of HOPWA, but NSPIRE only applies
where HOPWA funds are used under Sec. 574.300(b)(3), (4), (5), and
(8). HUD intends to modify the HOPWA regulations to reflect the
existing statutory requirement in a future rulemaking related to HOPWA.
Other Changes to Sec. 5.703
Addition of Example Unit Components at Sec. 5.703(d)
HUD is including balconies, carbon monoxide devices, and enclosed
patio to the non-exhaustive list of components which may be included in
a unit.
Addition of ``Structural Soundness'' and ``Extreme Temperature'' Health
and Safety Concern Examples at Sec. 5.703(e)(1)
HUD has added structural soundness to the non-exhaustive list of
health and safety concerns at Sec. 5.703(e)(1) previously required
under Sec. 576.403(c)(1).
HUD has also added ``extreme temperature'' to the non-exhaustive
list of health and safety concerns at Sec. 5.703(e)(1). HUD considers
the failure to provide an adequate heat source to prevent extreme cold
a deficiency as described in the NSPIRE Standards notice. By adding
this language to the regulation and NSPIRE Standards, HUD further
implements HOTMA Section 111, which required HUD to publish model
guidelines for minimum heating requirements for public housing. As part
of the consolidation under NSPIRE, HUD is removing Sec. 982.401(e)
regarding the thermal environment and making this addition here. HUD
has added language from Sec. 982.401(e) prohibiting the indoor use of
unvented fuel-burning space heaters in Sec. 5.703(b) and (d).
Addition of ``Carbon Monoxide'' as a State and Local Requirement at
Sec. 5.703(f)(1)
At this final rule stage, HUD is adding ``carbon monoxide'' as an
example in its non-exhaustive list of examples of State or local
requirements that are not superseded by these regulations. This change
has no substantive effect.
Section 5.705 Inspection Requirements
Inspection Standards Notice Clarification at Sec. 5.705(a)(1)
In the final rule, HUD clarifies that in addition to the standards
and procedures for identifying safe, habitable housing being set out by
the Secretary and published in the Federal Register, HUD will also
provide the scoring and ranking for HUD housing by publication in the
Federal Register. HUD has also added language identifying the different
levels of deficiency which will be used in the NSPIRE Standards notice.
Correction of Typographical Error at Sec. 5.705(b)(2)
In the final rule, HUD corrects a citation in the proposed Sec.
5.705(b)(2) which cited to ``Sec. 982.352(b)(iv)'' but should have
cited to ``Sec. 982.352(b)(1)(iv).'' HUD instead cites to parts 982
and 983 generally.
Timing of Inspections at Sec. 5.705(c)(1) and (c)(2)
HUD has added language to Sec. 5.705(c)(1) clarifying that HUD may
approve extension requests for good cause as determined by HUD. In
HUD's experience, inspections occasionally need to be rescheduled due
to events outside the owner's or PHA's control or for other reasons
which would cause the extension request to be justified. HUD has also
added language making clear that HUD may extend inspection deadlines
without the PHA or owner's request, to account for situations in which
HUD decides to grant a general extension, such as in an emergency
situation.
HUD is also removing from paragraph (c)(1) the restriction that
inspections must be done in the calendar year in which they are due.
HUD does not find that this restriction is necessary or important to
ensuring timely inspections, nor does it serve another administrative
purpose.
In paragraph (c)(2), HUD proposed a default annual inspection for
Multifamily and project-based housing,
[[Page 30446]]
with the potential for alternative timelines for inspection, such that
a property or project may be inspected on a timeline between two and
five years. After considering comments and reviewing inspections, HUD
believes that such an extended timeline as four or five years would, in
most cases, be too long to adequately review HUD-assisted housing. HUD
believes that the current ``3-2-1'' approach utilized in Multifamily
and Public Housing properly allocates HUD inspection resources to
ensure the regular inspection of all properties while prioritizing
those properties which require additional oversight. Properties of PHAs
that meet the definition of Small Rural under Sec. 902.101 will be
inspected every three years, as described in Sec. 902.103(b).
Addition of Citation Regarding Small PHAs at Sec. 5.705(c)
In Sec. 5.705(c)(4), HUD is adding a citation to Sec. 902.13(a)
to clarify that small PHAs shall continue to be inspected in accordance
with the relevant regulation, and in paragraph (c)(8), HUD is adding a
citation to Sec. 882.516 to clarify that Section 8 Moderate
Rehabilitation housing shall continue to be inspected under its own
regulation.
Tenant Involvement in Inspections at Sec. 5.705(f)
This final rule adds Sec. 5.705(f) stating that HUD will allow,
through notice, for tenant involvement in the inspection process of
Public Housing and Multifamily housing programs by making
recommendations regarding particular units to be inspected. Any units
inspected in addition to the standard unit sample will not be part of
the property's score, but the owner or PHA will be required to repair
any identified deficiencies. HUD has made this addition after
consideration of public comments regarding tenant involvement and the
aim to balance the need for tenant input with the procedural integrity
of the inspection process.
Section 5.707 Uniform Self-Inspection Requirement and Report
HUD is revising Sec. 5.707 to remove the electronic reporting
requirement of self-inspections, and is instead requiring that the
owner or PHA maintain records related to the self-inspection for three
years. HUD agrees with commenters who suggested a universal reporting
requirement for self-inspection results would pose an additional
administrative burden. Additionally, HUD has removed language from
Sec. 5.707 that offered an additional announcement and opportunity for
public comment in the Federal Register. This language was removed
because HUD will not use the results of self-inspections as proposed to
determine risk or the frequency of REAC inspections. The results of
self-inspections will also not affect a property's score. Because the
final version of the self-inspection requirement largely reflects
current requirements for Public Housing and Multifamily programs and
properties that score under 60, there is no need for additional
comment. The process to perform self-inspections will be in the NSPIRE
Administrative notice, which will be published without comment. For
properties scoring below 60, HUD believes that this information would
be uniquely useful as a tool to ensure all deficiencies are identified
and corrected. HUD is also adding language to allow properties the
option to perform the self-inspection in conjunction with the follow up
inspection at Sec. 5.711(c)(2). HUD has added additional language to
Sec. 5.711(c)(2) to clarify the post-inspection survey process and the
self-inspection requirement related to the inspection score.
Section 5.709 Administrative Process for Defining and Revising
Inspection Criteria
HUD is amending Sec. 5.709 at the final rule stage to make two
clarifying changes. First, HUD is distinguishing between the Standards
notice and the Scoring notice. In the proposed rule, both were
discussed as though they would be one notice. However, Standards and
Scoring represent two distinct elements of the assessment of HUD
housing, and HUD is publishing separate notices. Both notices are
subject to the same procedures.
Second, HUD is clarifying, consistent with the proposed rule's
discussion of the matter, that HUD will publish its Standards and
Scoring notices ``at least'' once every three years, to make clear that
HUD may publish its notices before it has been three years, at HUD's
discretion.
Section 5.711 Scoring, Addressing, and Appealing Findings
Change to the Name of Sec. 5.711
HUD is renaming Sec. 5.711 to more accurately reflect the purpose
of this section.
Changes to Deficiency Terminology at Sec. 5.711(c)
HUD is revising the different levels of deficiency to Life-
Threatening (LT), Severe, Moderate, and Low. This change is reflected
in the proposed NSPIRE Standards notice and HUD is also amending Sec.
5.709(a)(2)(i) for consistency with this change. As discussed further
in the NSPIRE Standards and Scoring notices, Low deficiencies are
deficiencies which are critical to habitability but do not present a
substantive health or safety risk to a resident. HUD is requiring that
Low deficiencies be repaired within sixty days unless specified
otherwise in the NSPIRE Standards.
Meaning of Correction at Sec. 5.711(c)(1)
HUD also amends Sec. 5.711(c)(1) to require that LT and Severe
items must be ``corrected'' instead of mitigated. In the context of
Sec. 5.711, ``corrected'' means the owner or PHA has resolved or
sufficiently addressed the deficiency in a manner that it no longer
poses a severe health or safety risk to residents. A correction could
include controlling or blocking access to the hazard by performing a
temporary relocation of the resident while repairs are made.\6\ HUD
recognizes that to permanently repair some deficiencies, the PHA or
owner may need additional time for a licensed professional, or supplies
that may not be available in a 24-hour timeframe. In some cases, for
lead hazard control work, exterior paint stabilization can be delayed
due to season conditions, or the resident family may need to be
relocated temporarily while the work is completed, and HUD can approve
extensions based on good cause.\7\ Additional information will be
provided in the subordinate NSPIRE Standards and Administrative
notices. For LT and Severe defects, HUD expects that permanent repairs
will be completed expeditiously, and that evidence of the repair will
be provided to HUD as described in Sec. 5.711(c)(2). HUD has also
removed the word ``contiguous'' from paragraph (c)(1) as unnecessary.
In practice, PHAs, owners and HUD all understand that the 24-hour
timeframe commences immediately upon notification and does not pause
for non-working hours, including the weekend.
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\6\ HUD notes that correction of a LT deficiency has a specific
meaning under HOTMA. Sec. 5.711 does not apply to HCV or PBV, and
therefore this definition of ``corrected'' does not apply to HCV or
PBV.
\7\ Relocation for lead hazard control work may be required
under 24 CFR 35.1345 and is subject to the requirements of the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970, as amended.
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Timeline for Correction at Sec. 5.711(c)(1)
HUD also amends Sec. 5.711(c)(1) to clarify the timeline for the
correction of health or safety deficiencies. The
[[Page 30447]]
timeline for correcting LT and Severe health or safety deficiencies
remains 24 hours after the inspection. The timeline for repairing
Moderate and Low deficiencies has been revised from ``expeditiously''
to ``within 30 days,'' consistent with HUD's intent as stated in the
preamble of the Proposed Rule. HUD can authorize permanent repair
timelines that exceed 30 days if the deficiency cannot be permanently
repaired in 30 days.
The NSPIRE Standards provide HUD's expectations regarding the
timeline for repair of each type of deficiency. HUD will not change the
requirement that LT health and safety deficiencies must be corrected
within 24 hours. Under the NSPIRE Standards, for the Public Housing and
Multifamily housing programs, Severe will also require correction in 24
hours.
Post-Report Inspection at Sec. 5.711(c)(2)
HUD is removing the requirement that owners or PHAs provide
electronic evidence of correction of Moderate deficiencies as HUD
believes, after considering comments, the burden both of reporting and
processing this evidence would outweigh the benefit. Paragraph (c)(1)
continues to require evidence that Severe deficiencies have been
corrected be provided to HUD within established timeframes. HUD is also
adding a requirement that properties which score below a 60 must
complete a full self-inspection, and not the limited self-inspection
described in this regulation for identified deficiencies in units and
areas of the property not inspected by REAC. This addition is necessary
to ensure that owners and PHAs survey 100 percent of their properties
when they have poor physical performance (i.e., scores below 60) in
order to identify additional health and safety defects in the units
that were not part of the inspection sample. PHAs and owners that
conduct a full inspection after the HUD inspection can consider this
inspection to satisfy the requirements of Sec. 5.707 for that year.
Start of the 45-Day Deadline To File a Request for Technical Review at
Sec. 5.711(d)(1)
In response to a public comment, HUD is revising Sec. 5.711(d)(1)
to clarify that the 45-day deadline to file a request for a technical
review begins on the day the inspection report is provided to the owner
or PHA.
Basis for Technical Review at Sec. 5.711(d)(4)
Based on comments received, HUD revised Sec. 5.711(d)(4) for
clarity and renumbered the three types of material errors
appropriately.
HUD is also adding in paragraph (d)(4) the three qualifiers for
requesting a database adjustment previously at 24 CFR 902.24.
Commenters noted this was inadvertently removed, especially the
exclusion of adjustments for modernization work in progress. At this
final rule, HUD is combining these three qualifiers for adjustment with
the three bases for technical review. These three qualifiers will have
the same appeal and review process as the technical review process for
errors. Given these revisions, HUD is removing paragraph (c)(3) and
removing part of paragraph (e) which HUD believes is repetitive with
revised paragraphs (d) and (d)(4).
HUD also removed the term ``year built'' as an item not scored
under Sec. 5.711(d)(4)(i), since a visual lead-based paint evaluation
is now part of the NSPIRE inspection, and the results of this
evaluation will be scored.
Posting on the Availability of Materials at Sec. 5.711(h)(3)
HUD has revised this section to clarify that the owner or PHA must
post a notice to residents on the date of submission to the owner of
the inspection score for the property in which the residents reside.
The notice must advise the residents of the availability of the
inspection materials described in 24 CFR 5.711. HUD is also specifying
that the notice must be translated into other languages if necessary to
provide meaningful access for limited English proficient (LEP)
individuals, consistent with HUD's LEP guidance and Title VI.\8\
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\8\ For more information on HUD LEP and Title VI guidance, see
``Final Guidance to Federal Financial Assistance Recipients
Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons'', 72 FR
2731 (Jan. 22, 2007).
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Departmental Enforcement Center (DEC) Evaluation at Sec. 5.711(i)
HUD is revising the introductory text of Sec. 5.711(i) to add that
HUD will also take administrative review action against properties with
two successive scores under 60. HUD also clarifies that while a score
of 30 points or less automatically leads to DEC referral, referral is
not automatic for the two successive scores under 60. Regarding the two
successive scores under 60, HUD recognizes that there may be mitigating
circumstances and HUD will take other review actions before HUD decides
whether DEC referral is necessary. As proposed, this regulation covered
both public and Multifamily housing programs, and HUD has retained this
in the final rule and clarified applicability. For public housing
properties, HUD recognizes that there are situations where the
responsible PHA's PHAS score may have already triggered other forms of
administrative review, rendering DEC review repetitive. HUD has also
made other minor, technical changes to this paragraph.
No Limitation on Existing Enforcement Authority at Sec. 5.711(j)
HUD has added the term ``grant agreement'' as an example of a
potential authorizing authority.
Sections Sec. 92.251 and 93.301 Property Standards
HUD has removed the clause, ``pursuant to 24 CFR 5.705,'' from
Sec. Sec. 92.251(b)(1)(viii), 92.251(c)(3), 92.251(f)(1)(i),
93.301(b)(1)(viii), 93.301(c)(3), and 93.301(e)(1)(i) because the
requirements in 24 CFR 5.705 through 5.713 do not apply to HOME
participating jurisdictions (PJs) under 24 CFR part 92 or HTF grantees
under 24 CFR part 93. HUD included the clause in the proposed rule in
these sections of 24 CFR part 92 and 24 CFR part 93 only to refer to
the part in Sec. 5.705 describing inspection standards and procedures
that would be published in the Federal Register. However, to avoid
further confusion, HUD is removing the clause. HUD will publish the
specific deficiencies that must be addressed by HOME PJs and HTF
grantees and explain how the requirements in 24 CFR 5.703 apply to PJs
and HTF grantees in a standards document published in the Federal
Register. This standards document for HOME and HTF will be separate
from, although similar to, the NSPIRE Standards notice and apply only
to HOME and HTF.
HUD is also making changes to these sections to clarify that
``decent, safe, sanitary, and in good repair'' means compliance with
Sec. 5.703 and deleting ``as referenced in Sec. 5.703'' because Sec.
5.703 does not use this term.
HUD is also making clarifying changes that the affirmative
requirements at Sec. 5.703 apply to single-room occupancy (``SRO'')
housing where the housing contains the room or facility referenced in
the affirmative requirements. This is necessary, for instance, where
the SRO does not contain its own restroom and therefore does not need
to meet affirmative requirements related to restrooms.
HUD is also revising Sec. Sec. 92.251(f)(1) and 93.301(e)(1) to
clarify that any property standards established by a participating
jurisdiction must ``require'' instead of ``ensure'' that the
[[Page 30448]]
owners maintain the housing as decent, safe, sanitary, and in good
repair. HUD believes that these two words, in this context, have the
same meaning, but has made the change to make the requirement clear.
Sections 92.504 and 93.404 Regarding Inspectable Areas
HUD has revised the language in Sec. 92.504(d)(1)(ii)(D) and Sec.
93.404(d)(2)(v) to describe ``inspectable areas for each building
housing HOME-assisted units.'' The regulation previously required that
for HOME projects with one-to-four HOME-assisted units, the
participating jurisdiction must inspect ``100 percent of the HOME-
assisted units'' and 100 percent of the ``inspectable items (site,
building exterior, building systems, and common areas) for each
building housing HOME-assisted units.'' However, the parenthetical
described the inspectable areas (e.g., site, building exterior,
building systems, and common areas) within a HOME project and not
``inspectable items.'' In this final rule, HUD is correcting the
language to require that when projects of one-to-four units are being
inspected by the participating jurisdiction or HTF grantee, all of the
units and 100 percent of the inspectable areas for each building must
be inspected by the PJ or HTF grantee.
Section 570.208 Criteria for National Objectives
This final rule also updates an outdated citation in Sec.
570.208(b)(1)(iv) to create a standard for determining whether
Community Development Block Grant (CDBG) funds were used to
rehabilitate a substandard residential building. Section
570.208(b)(1)(iv) describes whether an assisted activity is considered
to have met the public benefit standard for an activity to address slum
or blight on an area basis. One of the criteria for determining whether
a CDBG-assisted activity qualifies as an area benefit standard is that
the assisted activity must eliminate substandard housing, which is
housing that would also fail to meet the housing quality standards for
the Section 8 Housing Assistance Payments Program--Existing Housing (24
CFR 882.109).
On April 30, 1998, the final rule entitled ``Section 8 Certificate
and Voucher Programs Conforming Rule'' removed and reserved 24 CFR
882.109 as part of comprehensive rulemaking where HUD revised 24 CFR
part 882 to move requirements applying to the Section 8 voucher and
certificate programs into 24 CFR part 982 and 983.\9\ Therefore, this
citation is out of date. This final rule updates the citation in Sec.
570.208(b)(1)(iv) from 24 CFR 882.109 to 24 CFR 5.703. This change is
technical in nature, and HUD believes that this is an appropriate
technical correction to incorporate into this final rule.
---------------------------------------------------------------------------
\9\ 63 FR 23826 at 23854.
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Section 574.310 General Standards for Eligible Housing Activities
At the final rule stage, HUD is removing certain housing covered
under HOPWA from applicability from NSPIRE. Specifically, HUD is
removing from Sec. 574.310(b) NSPIRE's applicability to housing for
which HOPWA funds are used under permanent housing placement to pay an
eligible person's security deposit, utility hookup and processing
costs, or move in costs, except rental application and credit check
fees (Sec. 574.300(b)(7)). HUD has decided to no longer include stand-
alone permanent housing placement (Sec. 574.300(b)(7)) due to the
administrative burden it would place on HOPWA housing assistance
providers for these one-time costs. Many HOPWA grantees utilize
permanent housing placement in combination with the other permanent
housing activities that will be subject to the HUD housing standards
under the NSPIRE rule.
Section 576.403 Shelter and Housing Standards
For clarity and consistency, HUD is revising the organizational
structure of the proposed Sec. 576.403 consistent with the format of
Sec. 574.310(b)(2). HUD is also clarifying in Sec. 576.403(c)(2) that
the exemption from requiring self-inspection prior to move in for the
first thirty days does not exempt the requirement under part 35 to
inspect for lead-based paint.
Part 880--Section 8 Housing Assistance Payments Program for New
Construction
In the proposed rule, HUD proposed to amend Sec. 880.612 to
require that contract administrators inspect projects to determine
compliance with part 5, subpart G. Since the proposed rule was
published, Sec. 880.612 was modified by HUD's ``Streamlining
Management and Occupancy Reviews for Section 8 Housing Assistance
Programs'' rule.\10\ Because of this change, HUD is now choosing not to
amend Sec. 880.612. Part 880 is already made subject to part 5,
subpart G through Sec. 880.104(d), which states that ``the provisions
of 24 CFR part 5 apply to all projects [under this part.]'' Therefore,
no substantive change is made by the decision not to amend Sec.
880.612.
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\10\ 87 FR 37990 (June 27, 2022).
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Section 884.217, 886.123, 886.323 Maintenance, Operation, and
Inspections
HUD is making a technical edit to Sec. Sec. 884.217(b),
886.123(b), and 886.323(c). The previous regulation required the owner
and family to certify before move-in that the unit had been inspected
by both parties and the unit was decent, safe, and sanitary. The
proposed rule, consistent with other changes, proposed changing
``decent, safe, and sanitary'' to read ``compliant with part 5, subpart
G.'' HUD does not intend to require that a family is familiar with
HUD's housing requirements to certify compliance. Therefore, for
clarity, HUD has revised the regulation to require that only the owner
must certify compliance with part 5, subpart G. Both parties must still
certify that they have each inspected the unit. Families are still
entitled and encouraged to identify any deficiencies they believe may
exist and, where an owner fails to make repairs, report those
deficiencies to HUD.
Section 902.3 Definitions
At the final rule stage, HUD is removing the definition of
``Subarea'' from Sec. 902.3. As discussed further in HUD's proposed
Scoring notice, HUD is not using ``Subareas'' in NSPIRE. HUD is also
making a technical revision to the definition of ``Inspectable item''
to remove the reference to the ``Item Weights and Criticality Levels
document'', which no longer exists (as discussed in the proposed rule)
under NSPIRE.
Section 902.13 Frequency of PHAS Assessments
The proposed rule removed from Sec. 902.13(b)(2) language relating
to inspection frequency under PHAS and replaced it with a citation to
Sec. 5.705(c). Incidentally, this change removed language clarifying
that, for properties with a physical inspection score at or above 80--
i.e., properties scored less than annually--the most recent physical
inspection would be used in calculating the overall PHAS physical
condition indicator score for a given fiscal year.
At this final rule stage, HUD has revised Sec. 902.13(b)(2) to
clarify that HUD will use the most recent physical inspection score for
all properties, regardless of inspection frequency, in calculating the
PHAS physical condition indicator score. Section 5.705(c), which
provides the requirements for the timing of
[[Page 30449]]
inspections, does not tie inspections to a particular fiscal year.
Therefore, this revision makes clear that an inspection does not have
to occur during the PHA's assessed fiscal year to be included in that
fiscal year's PHAS score Troubled PHAs will continue to be assessed
annually as previously required by Sec. 902.13(b)(3).
Additionally, this final rule adds language to Sec. 902.13(b)(2)
regarding the transition from UPCS-based physical condition indicator
scores to NSPIRE-based scores. For simplicity, and to prevent technical
issues related to calculating scores using both the old UPCS system and
the new NSPIRE system, HUD will not provide a PHAS physical condition
indicator score that uses both UPCS scores and NSPIRE scores in its
calculation. Instead, starting July 1, 2023, PHAs will keep their most
recent physical condition indicator score until every public housing
property associated with the PHA has been inspected under NSPIRE. After
every property under a PHA has received an NSPIRE inspection, the PHA
will receive a new physical condition indicator score which will
exclusively use NSPIRE inspections in its calculation. After this
transition period, scores will be calculated using the normal method
laid out in Sec. 902.13(b)(2). This exception does not apply to small
PHAs under Sec. 902.13(a) or to small rural PHAs under part 902,
subpart H. These PHAs have a relatively small number of buildings
compared to PHAs covered by Sec. 902.13(b)(2) and inspections of these
buildings are usually more coordinated in a specific period of time.
Therefore, while this exception does not apply to these PHAs, HUD
intends to ensure that all properties under small and small rural PHAs
receive an NSPIRE inspection before calculating a PHA's new physical
condition indicator score.
Section 902.103 Public Housing Assessment of Small Rural PHAs
HUD is revising Sec. 902.103(a) to add one additional point for
physical condition and neighborhood environment to better align the
small rural PHAS regulation with the ordinary PHAS assessment. This
additional consideration ensures consistency with 42 U.S.C.
1437d(j)(1), which acknowledges the differences in the difficulty of
managing individual projects that result from their physical condition
and their neighborhood environment. HUD is also revising the
parenthetical examples in paragraphs (c)(1) and (2) to only provide one
example to avoid implying that the list of examples is exhaustive.
Section 902.107 Withholding, Denying, and Rescinding Troubled
Designation
The final rule includes Conciliation Agreements as a type of
special agreement with HUD in Sec. 902.107(a)(1) because a Voluntary
Compliance Agreement refers to agreements under Section 504, Title VI,
and the ADA, whereas Conciliation Agreement refers to agreements under
the Fair Housing Act.
Section 983.101 Housing Quality Standards
In the proposed rule, HUD proposed to replace all of Sec. 983.101
with a citation to Sec. 5.703. After further consideration, HUD has
decided, for clarity, to keep the entirety of Sec. 983.101 in place,
and to revise paragraph (a) to cite to Sec. 5.703. HUD also makes
minor conforming edits to paragraphs (b) and (c).
Section 985.205 Determination of Assessment Rating
HUD has revised the proposed Sec. 985.205(a)(1)(i) at the final
rule stage to add that a small rural PHA will be judged based on the
last two years of HCV budget authority data. HUD has made this change
because, for some PHAs, the sample size would be too small to rely on
one year only as an accurate picture of the PHA's performance. The
increased review period will improve a PHA's ability to achieve 98
percent in related indicators.
Conforming Changes
HUD makes the following conforming changes which do not impose or
change substantive requirements.
Terminology in Part 5
In the proposed rule, in certain places HUD inadvertently used the
term ``owner'' when the correct term should have been ``owner or PHA.''
There are also instances in the proposed rule where HUD used the term
``public housing'' when the correct term should have been ``HUD
housing'', which includes all the programs listed in Sec. 5.701(a).
HUD has corrected the terminology, where appropriate, in this final
rule.
Sections 884.217 and 886.123
HUD is also making minor changes to the proposed Sec. Sec.
884.217(c) and 886.123(c). HUD is removing language regarding the
sample of units to be inspected and removing language regarding the
frequency of inspections to ensure that these paragraphs are consistent
with each other, and consistent in applying part 5, subpart G.
Part 965, Subpart I--Fire Safety
This final rule removes part 965, subpart I regarding fire safety.
This subpart applied fire safety regulations to public housing. The
NSPIRE rule applies these same requirements to public housing,
rendering this subpart redundant.
Sections 982.402 and 982.618
This final rule updates part 982 to remove citations to paragraphs
in Sec. 982.401 to reflect the update to Sec. 982.401.
Part 982, Subpart M--Special Housing Types
This final rule amends 24 CFR part 982, subpart M, which lays out
alternative and additional requirements to the Housing Quality
Standards. This final rule makes no substantive changes to subpart M,
but only updates and removes citations and references to the Housing
Quality Standards consistent with the changes proposed and now made.
This is consistent with Sec. 5.703(h) of both the proposed and final
rule, which states that special housing types under part 982, subpart M
are subject to different and additional requirements.
Part 983--Project-Based Voucher (PBV) Program
This final rule amends Sec. 983.2(c)(4) to remove the citation to
``Sec. 982.401(j),'' which was removed in both the proposed and final
rule. This does not change the lead-based paint obligations which apply
to the part 983, as discussed at Sec. 983.4.
IV. Public Comments
General Support Comments
Several commenters expressed general support for the changes in the
proposed rule. A commenter stated that the rule would advance
affordable housing. Another commenter anticipated a responsive real-
life process to effect improvement in housing standards. Another
commenter stated that the proposed rule would be an avenue for managing
the workload and incentivizing properties that perform well, and also
as a way for HUD to manage its own backlog of inspections. A commenter
stated that there are many communities that do not enforce code
regulations but having all agencies on the same platform would help
local officials understand what is needed. One commenter supported the
decreased subjectivity and increased accuracy of the proposed rule to
achieve positive outcomes. Commenters also supported HUD's NSPIRE
demonstration.
[[Page 30450]]
HUD Response: HUD appreciates this input and support for the
changes in the rule. HUD agrees that having focused, objective,
accurate and up to date regulations, processes, and standards can help
achieve positive outcomes for millions of families while at the same
time improving the way HUD operates. In this final rule, HUD has
largely maintained the same framework as in the proposed rule.
Additional General Support Comments
Commenters expressed support for HUD's dedication to seeking
stakeholder feedback. One commenter supported HUD engaging with the
public to address the industry's difficulties with existing
inflexibility on technical, mechanical, and engineering issues that
have limited impact on the safety and habitability of existing
structures but absorb a disproportionate amount of time and difficulty
on sites. Another commenter stated that HUD has made clear that equity
and transparency are key goals for this rule. One commenter noted that,
while it is important that HUD lays out an expansive framework at the
Federal level, it will be important that HUD works frequently with
public authorities as they facilitate this transition to promote
efficiency while limiting administrative burden when possible. A
commenter urged HUD to expand outreach to include residents, State and
local code enforcement agencies, legal service attorneys, housing
advocates, public health advocates, and environmental justice
advocates, to make enforcement effective and efficient.
HUD Response: HUD thanks commenters for their input on this topic.
HUD continues to improve outreach efforts and obtain feedback from
stakeholders and the general public. HUD agrees that equity and
transparency are key considerations in this rule. HUD has retained the
requirement at Sec. 5.709(a)(1) to regularly revisit the requirements
through public comment, allowing all stakeholders an opportunity to be
heard. HUD also believes outreach efforts should include residents,
State and local code enforcement agencies, and other housing
stakeholders and advocates and continues to seek their feedback through
this rulemaking process. The proposed NSPIRE Standards notice was
posted for comment on June 17, 2022, for 45 days for public comment.
HUD considers these comments important in finalizing the Standards
notice. To promote feedback and encourage transparency, HUD also
published information on the NSPIRE demonstration effort on its website
and sought feedback from participants through the demonstration.
Residents of HUD-assisted housing were encouraged to comment as
members of public, but also through other available opportunities for
participation. In public housing, residents can participate in resident
advisory councils and attend regular meetings held by their Board of
Commissioners. Board members are typically appointed by elected
officials and include at least one resident member. All members of the
public, including legal service attorneys and housing and public health
advocates, can report housing standard violations or other concerns to
HUD offices. A list of contacts for HUD's local offices can be found at
<a href="https://www.hud.gov/local">https://www.hud.gov/local</a>.
Economic Growth and Recovery Act
Question for Comment #1: Standards for Small Rural Section 8 Projects
and PHA Public Housing Projects
Commenters recommended that HUD follow Congress's intent to provide
less burdensome regulations for small PHA properties. One commenter
supported HUD's proposal to align standards for small rural PHAs.
Another commenter supported taking an expansive view and defining
``standards . . . for the acceptable condition of public housing
projects'' to mean the entire NSPIRE model. A commenter also
recommended HUD provide more technical assistance options for small
rural PHAs. One commenter suggested the same standards should apply to
all projects to ensure fair and equitable living conditions across
PHAs.
A commenter stated that Housing Quality Standards (HQS) inspections
for Section 8 properties were more consistent and objective than the
Uniform Performance Condition Standards (UPCS) inspection protocol used
for their public housing properties, and therefore small rural agencies
should be allowed to use the HQS protocol to comply with inspection
requirements. This commenter recommended that if HUD determines that
maintaining HQS inspection protocols for small rural agencies is
infeasible, then HUD should allow public housing units at small rural
agencies to be inspected similar to Section 8 properties.
HUD Response: Through this rule, HUD is adopting the statutory
requirement for specific relief for small rural PHAs but requires that
properties of these PHAs will be assessed using the NSPIRE standards
for physical conditions in both the Public Housing and HCV programs.
The changes will apply to PHAs as described in 24 CFR part 902, subpart
H and 24 CFR part 985, subpart D. HUD declines to implement the
recommendation to utilize Housing Quality Standards (HQS) for small
rural PHAs. One of HUD's objectives is to align standards across
numerous housing portfolios, and with this rule the HQS regulations
incorporate the NSPIRE standards and refer to Sec. 5.703. HUD believes
that the NSPIRE standards provide more consistent and objective
criteria with which to evaluate the safety and habitability of HUD-
assisted housing. Residents that live in units managed by small rural
PHAs should be provided the same level of safety and habitability as
residents of other 572 public or HUD-assisted housing.
As proposed and now made final, HUD will make the initial
determination of PHAs that qualify as small rural as defined in Sec.
902.101 of this title no later than 120 days after the effective date
of the final rule for Public Housing, or July 30, 2023. Additional
deregulation efforts for other small PHAs are outside the purview of
this rule but could occur through future rulemaking including updates
to the Public Housing Assessment System (PHAS). Relief under this rule
is provided in 24 CFR part 985, subpart D and a new subpart H under the
current 24 CFR part 902. Section 902.103(b) includes a three-year cycle
for overall scoring based on physical conditions for non-Troubled small
rural PHAs.
HUD agrees with the need to align standards for small rural PHAs
for Public Housing and Section 8 properties with other PHAs, and this
rule provides the framework for this alignment to the NSPIRE standards.
The NSPIRE standards were proposed for comment on June 17, 2022, and
final standards will be published before this rule's effective date.
Additional implementing information for the new standard, including the
process for PHAS rule and SEMAP assessments, will be provided through a
Departmental notice. HUD plans to provide more technical assistance for
small rural PHAs with the administrative notice.
Section 5.701 Applicability
Commenters stated that the proposed rule should be broad in scope.
Two commenters suggested expanding applicability to include tax credit
communities and Section 232 properties. Another commenter welcomed
HUD's efforts to codify uniform standards across HUD-assisted housing,
noting that establishing uniformity will help empower residents to
navigate different HUD assisted
[[Page 30451]]
housing systems over time and also improve the interface with local
code inspection agencies, who otherwise may have to navigate
conflicting standards and expectations across HUD programs.
A commenter expressed concern that the proposed rule does not take
into account the differences between insured housing and affordable
housing, pointing out that some types of HUD-insured housing, e.g.,
assisted living and nursing homes, are subject to various State-imposed
requirements and regulations. One commenter suggested that HUD should
clearly state which specific program regulations are superseded or
supplemented elsewhere, noting that part 5 may become the first stop a
PHA, owner, or owner/agent (``POA''), member of the public, or other
interested party makes to find housing quality regulations, and it may
be their last stop if they are not directed to other applicable
regulations. The commenter stated that absent this direction,
individuals will have to cross-check program regulations manually which
could lead to unnecessary confusion.
HUD Response: HUD agrees with the comments about the scope of the
rule and believes that the rule improves the consistency and uniformity
of housing standards for HUD-assisted programs given its broad
applicability to all HUD-assisted residential properties and units. In
order to ensure regulated parties know which standards apply to them,
this rule revises specific program regulations to reference the new
NSPIRE standards. The framework for evaluating physical condition
addresses safety and habitability regardless of the type of HUD-
assisted housing.
This rule applies to all types of HUD housing including health care
facilities insured under Section 232 of the National Housing Act and
Low-Income Housing Credit (LIHTC) properties receiving some form of HUD
assistance and other properties under a HUD-assisted housing contract
(e.g., annual contributions contract). HUD does not have authority to
create rules that apply to the Department of Treasury's Internal
Revenue Service LIHTC and therefore cannot apply this rule to the LIHTC
generally, but can apply this rule whenever the LIHTC property also
receives some form of HUD-assistance. HUD will engage other Federal
agencies with potentially overlapping subsidies to further evaluate the
applicability of the NSPIRE rule to these other Federal housing subsidy
types.
With respect to conflicting standards and expectations, HUD
physical condition requirements have always overlapped with State and
local physical condition standards and sometimes exceed these
standards. In other cases, State and local standards exceed HUD
standards. This rule does not change the proposed Sec. 5.703(f) which
states that for all covered programs, the NSPIRE Standards for the
condition of HUD-assisted housing do not supersede State and local
Housing codes. This rule establishes nationwide Federal minimum
requirements for HUD-assisted housing and does not attempt to unify or
preempt State and local housing standards. Because all HUD-assisted
housing must meet the NSPIRE rule requirements, residents and other
HUD-assisted housing stakeholders should have a nationwide expectation
for the safety and habitability of housing; however, it will continue
to be necessary to review all other applicable requirements including
Federal accessibility requirements and State and Local requirements.
Section 5.703 Inspection Standards
Comments Regarding Alignment and Streamlining of Standards
Commenters expressed support for the alignment of standards and
inspection processes, stating that this would have a positive impact on
properties with mixed financing or subsidy layering, eliminate the need
to subject residents to multiple, separate oversight mechanisms, and
reduce administrative and cost burden to owners and agents. Commenters
supported the proposed rule's streamlining of the number of inspection
categories and focus on the condition of individual units and stated
that this approach is more aligned with municipal laws governing health
and safety in rental housing. A commenter supported moving away from
``curb appeal'' deficiencies toward ``substantial safety
deficiencies,'' while another commenter supported the linguistic change
from ``exigent health and safety'' to ``severe health and safety''
deficiency, as reducing bias and variability in the inspections
process.
One commenter noted that federally assisted rental properties are
in varying states of disrepair with multiple deficiencies, and
suggested that irrespective of the housing program HUD might require
the same standards to be applied across the board, and according to the
housing program requirements, require different levels of risk
management measures or approaches to address the health and safety
risks posed by the identified hazards.
One commenter stated that the proposed rule lacks coherence between
HUD standards and other groups' standards. The commenter further stated
that given how housing has been contracted out and privatized, it can
be more difficult to assess program-assisted housing.
HUD Response: HUD agrees with commenters that the regulatory
consolidation, use of consistent standards across housing program, and
program alignment within this rule will allow HUD and regulated
entities to realize administrative benefits.
HUD agrees with commenters that the rule will reduce the
administrative and cost burden to owners while improving the
habitability and safety of HUD-assisted properties and units, which are
not mutually exclusive objectives. HUD evaluated many other third-party
organization standards and believes its standards are consistent with
industry best practices for residential real estate. This rule provides
a consistent means of assessing all types of HUD-assisted housing.
This rule will align all listed HUD-assisted programs under the
NSPIRE Standards that were proposed on June 17, 2022 and will be final
before the effective date of this rule. Resolution of identified
deficiencies will be mostly consistent with resolution of deficiencies
under the UPCS and HQS standards but scoring and pass/fail decisions
will be driven by the NSPIRE program requirements and applicable
statutes. With this consolidation, HUD will better focus on
habitability and the health and safety of residents.
Minimum Habitability Requirements
A commenter agreed with the idea of reinforcing the importance of
minimum habitability requirements and adding the word ``safe'' to the
existing rule and suggested that ``safe'' take on issues regarding lead
exposure and mean ``protected from the amount of exposure that will
cause harm or damage after exposure.''
HUD Response: The term ``safe'' has been, and will continue to be,
an important term for HUD inspection standards. This rule will
reinforce the priority of maintaining a safe and habitable dwelling.
HUD declines to adopt additional language around lead exposure in this
regulation, as it is covered by 24 CFR part 35.
Environmental Factors
A commenter noted that ``standard public health and safety metrics
related to morbidity and mortality'' are largely foreign to housing
providers, and whether they align well with the unique environment of
housing maintenance and management is unknown. This commenter agreed
that the built
[[Page 30452]]
environment's effect on the health and safety of residents is more
important than any building damage that is strictly cosmetic in nature
but cautioned that HUD must ensure that protocols reflect that PHAs are
constrained by funding and other funding priorities.
A commenter suggested HUD require inspection of roofs, foundations,
storm water runoffs, trash receptacles, ERV systems, heat pumps, and
air ducts. This commenter further suggested HUD require screens to
prevent bugs, and humidity and environmental control to avoid
unnecessary power bills. Another commenter stated that HUD must
specifically consider hazards created by the outside environment and
their effects on subsidized properties and on the low-income tenants
who reside in these developments or are eligible to live there, and
that the comment period should either be extended, or a new comment
period opened, to specifically consider these important factors. This
commenter suggested specifically that HUD should include 24 CFR
982.401(l) in the regulations, as well as 24 CFR 982.401(h), and other
environmental hazards considerations (e.g., the proximity of the
property to large polluters and transportation infrastructure, toxins
in the soil and water, and the area's air quality).
A commenter proposed several additions to address general health
and safety concerns. The commenter suggested that HUD address toxic
mold and indoor air, largely caused by water leaks and poor ventilation
in aging housing stock, by equipping REAC inspectors with moisture
meters to detect moisture behind walls that may signal plumbing or roof
leaks that cause mold. The commenter also suggested adding and/or
revising requirements around a number of health and safety issues,
including clogged ventilation; presence of asbestos/radon; presence of
lead-based paint; presence of mice, rats, bedbugs and roaches. Finally,
the commenter recommended that HUD re-adjust or remove the Point Loss
Caps to allow for accurate deductions for deficiencies. The commenter
opined that the practice artificially inflates REAC scores, negates the
point of a ``random sample,'' and is inherently biased against the
health and safety of residents.
Commenters also focused on the issue of water-borne lead poisoning
and provided several lead-related suggestions, including that HUD
update its lead inspection requirements, by, for example, no longer
allowing visual inspections to suffice as a valid way to assess lead
risks, and by using a portable x-ray fluorescence tool, or XRF gun to
assess lead hazards. A commenter expressed concern that HUD's proposal
to make no substantive changes to the lead-based paint requirements of
its current regulations misses a critical opportunity to make long-
overdue updates to outdated lead standards.
HUD Response: HUD appreciates acknowledgement of the built
environment's effect on health and safety of residents; as such this
rule focuses on the built environment supported by HUD subsidies and/or
assistance, as described in Sec. 5.703 for outside, inside and units
and in the NSPIRE Standards notice. HUD acknowledges that capital
funding across both its Public Housing and Multifamily programs has
been limited in recent years, and this may have resulted in deferred
maintenance and modernization. However, this cannot result in units
that are unsafe for residents, and so the NSPIRE program has made life-
threatening conditions a priority for standards development and
scoring.
Comments concerning the scope of inspectable items will be
addressed through the subordinate Federal Register notice on the NSPIRE
physical condition standards, which was proposed for public comment on
June 17, 2022.
In the final NSPIRE Standards notice, a screen will be considered a
component of the window, and will be cited if damaged, missing or not
functionally adequate. HUD acknowledges that some HUD-assisted housing
may be located in areas with industrial contamination, and takes very
seriously the comment concerning the risks posed to residents by the
external environment. Contamination can be addressed as a health and
safety concern under Sec. 5.703(e) of this rule. HUD will provide
additional information about the applicability of this section in the
NSPIRE Administrative notice. Lead-based paint evaluation and hazard
control is covered under 24 CFR part 35 and is outside the scope of
this rulemaking.
With respect to the dangers posed by water-borne lead, HUD
continues to work with the Office of Lead Hazard Control and Healthy
Homes and the Environmental Protection Agency (EPA) where there are
active, environmental hazards to residents, including lead in water.
More information on the review of site contamination is available at:
<a href="https://www.hudexchange.info/programs/environmental-review/site-contamination/">https://www.hudexchange.info/programs/environmental-review/site-contamination/</a>.
With respect to other health and safety issues such as mold,
moisture and pest intrusion, this rule and the associated standards
cover these housing-related hazards. The NSPIRE Standards were proposed
on June 17, 2022, for public comment and will be finalized before this
rule takes effect. NSPIRE will continue to include visual assessments
only, but HUD will continue to consider other, specialized inspections
for environmental health issues. The use of a moisture meter to assess
moisture intrusion is one of several tools HUD has considered and,
because this pertains to inspection standards, HUD will discuss this
further in the final NSPIRE Standards notice.
HUD will elaborate more on its scoring methodology in its Scoring
notice. HUD will take these comments and all additional comments into
consideration before scoring under NSPIRE commences, including whether
the point-loss cap will be retained.
Affirmative Requirements
A commenter cautioned that several of HUD's proposed affirmative
safety requirements would exceed local building codes and create
significant costs for housing stakeholders and create unnecessary
confusion and urged HUD to base standards on existing International
Building Code or fire Life Safety Codes wherever possible. The
commenter suggested that if HUD proceeds with these affirmative safety
requirements, the agency should be mindful of these impacts and help
owners defray costs, while allowing transition times or the possibility
to ``earn'' extra points, rather than lose points, for new affirmative
safety requirements. The commenter further suggested that HUD make
efforts to mitigate inconsistencies between inspectors to the extent
possible.
HUD Response: HUD considered the costs and benefits of this rule
and considered model codes in its development, where appropriate. The
affirmative requirements in the final rule at Sec. 5.703 align with
the International Property Maintenance Code (IPMC) which is currently
adopted for use in 40 States & 1000 plus local jurisdictions as their
housing maintenance codes. Affirmative requirements are the basic
requirements for an assisted unit and property that must be met for
participation. These standards are what HUD considers the minimum
requirements for habitability, and generally will not be scored for
their presence or absence but will be designated as pass/fail. If they
are not met, they will be cited, and must be corrected if the unit is
approved for participation or continued occupancy. HUD has evaluated
the costs of the new
[[Page 30453]]
rule in its Regulatory Impact Assessment. The NSPIRE Standards notice
was published for comment on June 17, 2022; additional information
regarding affirmative requirements will also be included in the
forthcoming Scoring notice.
HUD agrees that inconsistencies between inspections and inspectors
is an important issue that should be mitigated and has revised the
requirements for eligibility and ongoing training as described in the
subordinate NSPIRE Administrative notice which will be issued soon
after this rule. This notice, and the contract used to procure REAC
inspectors will include requirements for quality assurance and control
to ensure consistency between inspectors and inspections.
The NSPIRE scoring methodology will be published in the Scoring
notice. This Scoring notice will be published for effect but will seek
public comments, including regarding scoring changes that reward
certain properties for adoption of affirmative requirements, but HUD
does not plan to award bonus points for standards that must be met and
are not optional.
Alternative Standards
A commenter noted that Federal agencies are required to use
voluntary consensus standards wherever possible in their procurement
and regulatory activities in lieu of expending public resources
developing government unique standards and encouraged HUD to leverage
private sector codes by, at minimum, accepting the IPMC across HUD's
programs as an optional, alternative compliance mechanism. The
commenter opined that allowing adherence to the IPMC to satisfy HUD's
maintenance requirements would harmonize these requirements and
standardize practices, and that inspectors would be more efficient and
effective at implementing a single maintenance standard than they would
at three or more variations. The commenter noted the IPMC exceeds HUD's
standards because HUD's standards have not been substantively updated
for decades., while the IPMC is updated every three years.
HUD Response: HUD considered the IPMC as a model but believes the
NSPIRE Standards are more appropriate for HUD programs. To apply the
IPMC, the current inspector workforce would need to learn a new set of
standards in addition to the statutory requirements that HUD must
oversee that exceed IPMC. The IPMC also does not publish standards in
areas that are safety concerns for HUD and is often a prescriptive
standard that does not consider current conditions.
Accessibility Compliance
Several commenters recommended that HUD require that common areas,
indoor mailboxes, parking lots, waste disposal areas, walkways, and
other areas should be ADA compliant for persons with disabilities.
HUD Response: Compliance with the requirements of the Americans
with Disabilities Act (ADA) is already required for services, programs,
and activities of State or local governments, as described in 28 CFR
part 35. HUD-assisted properties must also comply with Section 504, as
described in 24 CFR part 8. The Office of Fair Housing and Equal
Opportunity (FHEO) is responsible for inspection and administrative
enforcement related to compliance with accessibility standards under
both the ADA and Section 504, as well as the Fair Housing Act. Those
regulations are not proposed for modification through this rulemaking.
The NSPIRE Standards will include elements of accessibility within the
standards, but these elements are not the same as the Federal
accessibility standards as they relate to housing. Compliance with
these NSPIRE Standards does not mean the participant has complied with
the Federal accessibility standards. HUD also notes that the NSPIRE
standards include common areas under Sec. 5.703(b), Inside, and the
areas outside the property such as waste disposal areas, walkways in
Sec. 5.703(c), Outside.
Area Names and Definitions
A commenter suggested clarifying in paragraph (a) that ``outside
the building'' includes the building site. This commenter also
suggested that paragraph (b) be renamed as ``Inside common areas,''
that both mechanical rooms and utilities rooms be stricken, and that
the definition be qualified as applying only to areas that are
accessible to residents. With respect to paragraph (c), the commenter
suggested renaming it to ``Outside areas'' and that the definition be
qualified as applying only to areas that are accessible to residents.
One commenter stated that HUD must define ``functionally adequate''
and also questioned the basis of the universal habitability
requirements and design specifications.
HUD Response: HUD streamlined the number of inspection categories
(or areas as previously defined) from five to three to simplify the
inspection program and improve transparency for all stakeholders. HUD
believes that properties should be free from health and safety hazards,
including all of the areas as described in (b) Outside, (c) Inside, and
(d) Units. Section 5.703(c) includes the building site, building
exterior components, and any building systems located outside of the
building or unit. Examples of ``outside'' components on the site may
include fencing, retaining walls, grounds, lighting, mailboxes, project
signs, parking lots, detached garage or carport, driveways, play areas
and equipment, refuse disposal, roads, storm drainage, non-dwelling
buildings, and walkways. Regarding ``inside common areas,'' mechanical
rooms and utilities are included as areas to inspect, regardless of
access because they could present a safety hazard that could impact
units. For example, combustible materials near a water heater or
furnace in a utility room could cause a fire that impacts the entire
building. Regarding the definition of the term ``functionally
adequate,'' each standard in the NSPIRE Standards notice will define
what ``functionally adequate'' means for that particular standard.
Living Rooms as Bedrooms
Commenters suggested that Sec. 5.703(d)(5) should not count living
rooms as a bedroom and should be modified to include Public Housing and
Multifamily housing. A commenter stated that families with a member who
experiences a disability should not be forced to use the living areas
as a bedroom in lieu of granting the family's reasonable accommodation
request for a larger voucher.
HUD Response: Proposed Sec. 5.703(d)(5) included requirements that
for units assisted under the HCV or PBV program, the unit must have at
least one bedroom or living/sleeping room for each two persons. While
HUD appreciates comments on bedroom sizes, the regulation has been
retained with a modification to exclude gender qualifiers but retained
language around age regarding what PHAs could require for families. The
commentor's concerns, however, touch also on subsidy standards in Sec.
982.402, which are not proposed for revision. The requirements for
family size and composition are not applied to the Public Housing and
Multifamily housing programs because those programs did not previously
have strict occupancy requirements linked to the unit size. Families
that include a person with a disability may request a waiver of the
occupancy requirements to accommodate their needs as a reasonable
accommodation. The Fair Housing Act and Section 504 of the
Rehabilitation Act of 1973 each prohibit
[[Page 30454]]
discrimination against persons with disabilities, and PHAs and owners
are obligated to grant requests for reasonable accommodation when it
may be necessary to afford a person with a disability with equal
opportunity to use and enjoy housing. For more information or to file a
complaint, see <a href="http://www.hud.gov/fairhousing">www.hud.gov/fairhousing</a>.
Superseding State and Local Code
A commenter suggested that Sec. 5.703(f)(1) should be amended to
state that HUD standards supersede local or State codes when HUD
standards exceed local or State codes.
HUD Response: HUD declines to state that HUD's standards supersede
local or State code. The NSPIRE rule establishes a standard for housing
quality across covered HUD programs, while allowing applicability of
State/local building codes that are more protective or necessary for
local conditions. Superseding State or local code only where HUD
standards exceed that code, and only for HUD housing, would be
administratively difficult and unnecessary. HUD Housing is required to
follow both Federal standards and State and local law.
Application to HCV and PBV Units
Commenters suggested that Sec. 5.703(f)(2) should be amended to
require HCV and PBV units (not just Public Housing and Multifamily
housing) to meet State and local standards that are greater than those
established by HUD in order to comply with the subpart. A commenter
asserted that the inapplicability of State and local housing code to
HCV and PBV units is in opposition of the statute and HUD's historical
practices and stated that HCV and PBV units should not pass inspection
if they do not comply with Federal, State, and local codes, asserting
that voucher families should be able to benefit from using State and
local laws to improve their housing conditions without the risk of
their losing their subsidies, and that to the extent HUD is concerned
that State and local codes are being used to target and exclude voucher
holders, HUD could clarify that local and State code violations cannot
result in the termination of the subsidy or used in a manner to
penalize the tenant household. A commenter stated that HUD must ensure
that inspection standards applicable to the HCV program do not impose
requirements that exceed typical rental market standards and
unintentionally limit housing choice or discourage landlords from
participating. The commenter stated specifically that the standard for
units to have ``a living room and a kitchen area'' should reflect the
existing definitions used in the HCV program and that the phrase
``other than very young children'' must be defined, or it must be clear
that the housing provider has the discretion to define the age.
HUD Response: HUD believes that the language under Sec.
5.705(a)(3) is sufficient to address these concerns. State and local
codes still apply to HUD assisted housing, but the requirements would
not be incorporated in the NSPIRE inspection. For the HCV and PBV
programs, PHAs have the ability to consider variations in local laws
and practices and provide appropriate flexibility to facilitate the
efficient provision of assistance. Multifamily owners, managers and
PHAs are encouraged to include State and local requirements in their
annual self-inspections. HUD agrees that the HCV and PBV program should
have certain flexibilities to ensure that the program does not
unintentionally limit housing choice or discourage landlords from
participating, while still requiring that units be healthy and safe for
residents.
With respect to definitions of ``living rooms'' and ``kitchens,''
HUD has not created new definitions for these spaces in regulatory
text, and State/local standards will continue to apply. In the
Administrative notice, HUD will include definitions that align with the
American Housing Survey. HUD appreciates the comment on defining ``very
young children.'' As discussed elsewhere, HUD removed the regulation
requiring separate bedrooms for children of the opposite sex, and
therefore the term ``very young children'' is no longer used.
Comments Regarding Smoke/Carbon Monoxide Detectors and Fire
Extinguishers
Commenters had concerns about the burden associated with providing
the various items. One commenter suggested that requirements for CO/
Smoke detectors in every sleeping room be grandfathered to requirements
at the time of construction. The commenter noted that current
regulations and code require them on each living level but, unless a
minimum threshold is crossed in rehab/modification in any unit, they
are not required in each bedroom. The commenter also opined that the
likelihood for tampering and/or removal will increase by a level times
the number required to be provided.
Another commenter opined that the proposed change of requiring fire
extinguishers in every unit is a costly and bad idea to implement, and
that it will be highly difficult to regulate extinguishers owned by
residents, and costly in dollars and points to the project. Another
commenter urged HUD to reconsider the draft standard that would require
a fire extinguisher in every unit, and to replace it with a requirement
to install extinguishers regularly at a certain measure throughout the
hallways of properties. The commenter stated that having a fire
extinguisher in the unit will increase the likelihood that a resident
will remain in the unit in the case of the fire and try to extinguish
it, instead of exiting the unit as quickly as possible.
A commenter stated that requiring a fire extinguisher inside each
rental unit would exceed local requirements and create administrative
burden. Some commenters supported requiring carbon monoxide detectors.
One commenter stated that HUD must move quickly to require the
installation of carbon monoxide detectors in HUD-assisted and HUD-
insured housing, and that, given that most local codes require the
presence of carbon monoxide detectors, there is no need for delay. A
commenter noted that HUD did not require carbon monoxide detectors to
be installed consistent with the 2018 edition of the International Fire
Code but noted that the IPMC has required carbon monoxide detectors in
each of the last two editions. A commenter asked if fire stops could be
used in place of fire extinguisher and noted success in installing fire
stops, which deploy automatically, above stoves to prevent kitchen
fires, which they found to be safer than using a fire extinguisher.
HUD Response: Regarding carbon monoxide detectors, the requirements
in the 2021 Consolidated Appropriations Act took effect on December 27,
2022. The Act requires that PHAs adopt the provisions of the 2018
edition of the International Fire Code (IFC) Standards, sections 915
and 1103 (or subsequent versions if amended) for the covered programs.
The NSPIRE Standards proposed to incorporate this requirement, but the
statute is prescriptive for public housing owned or operated by a PHA,
dwelling units occupied by individuals with Housing Choice Vouchers,
dwelling units assisted with project-based vouchers or project-based
rental assistance, dwelling units assisted under the 202 and 811
programs, and dwelling units assisted under the HOPWA program and
required that units in these covered programs have carbon monoxide
detection devices installed, effective December 27, 2022. No action
from HUD was necessary to cause this requirement to take effect, and
HUD is making these conforming changes at the final rule stage without
notice and
[[Page 30455]]
comment because they only incorporate these statutory requirements.
Regarding fire extinguishers and other fire safety requirements,
the proposed NSPIRE Standards notice published on June 17, 2022,
included a fire extinguisher requirement and HUD will discuss this
requirement, including comments received on this requirement, more in
the final Standards notice. With respect to the comment about ``fire
stops,'' HUD interprets the comment as actually relating to a
``StoveTop Firestop system.'' HUD does not intend to include such a
system as an alternative manner of compliance because these systems do
not have national standards and must be acceptable to the local
authority having jurisdiction.
Other Suggestions
A commenter supported requiring pictures of failed items and
recommended requiring pictures of items that are not fails but should
nonetheless be documented. Another commenter supported current HUD
asbestos abatement standards. Another commenter urged HUD to provide a
single document with clear and objective scorable defects and weight of
defects and required condition.
Two commenters suggested that HUD, in the final rule, refine the
characteristics of some of the identified unit components, such as
adequate heat (and cooling where appropriate) directly or indirectly in
each room, well-functioning windows and doors with functioning locks,
and an adequate number of electrical outlets and built-in lighting
fixtures.
HUD Response: HUD appreciates the comments about the need for a
clear and objective scoring methodology. NSPIRE will require
documentation of deficiencies which inspectors will upload into a new
streamlined system. Further guidance regarding documentation of
deficiencies will be published in the final Standards notice, Scoring
notice, and Administrative notice which will be published before the
effective date of this rule.
The proposed rule did not propose new standards for asbestos in
federally assisted housing and HUD is choosing not to do so now.
Property owners, managers and PHAs are advised to continue to monitor
any known or suspected asbestos containing materials (ACM) and ensure
that they are not damaged or friable. If ACM will be disturbed during
renovation activities, follow all applicable OSHA and EPA laws.
Comments Regarding Water Safety (Questions for Comment #1 and #2)
HUD asked several questions about water safety. HUD received
comments on all of these questions, which are combined and discussed
below. The first group of questions was directed at definitional
issues, i.e., how should ``safe and potable water'' be defined and
whether ``safe'' should mean that a public water system is in
compliance with the Safe Drinking Water Act?
A number of commenters pointed out that PHAs are not in a position
to monitor water safety, which is the responsibility of local water
suppliers and local government agencies. Commenters also noted that
there is an important distinction, unaddressed in the proposed rule,
between properties served by public water systems and those served by
well water systems. Some commenters stated that HUD had no business
attempting to define ``safe and potable water,'' with a few
recommending specifically that ``safe'' be removed. These commenters
stated that this determination is the province of other State and
Federal entities, most notably the EPA, and that HUD lacks the
requisite expertise with respect to determinations of water safety.
Many commenters did suggest definitions for ``safe and potable
water.'' Some commenters suggested keeping the definitions very basic:
``Running water with temperatures of hot and cold running thru the
pipes''; ``water that is safe to drink and for food preparation'';
potable water is water that is ``safe to drink.'' One commenter
suggested that HUD should define safe water as having ``reasonable
certainty that no harm will result,'' and that ``there is a reasonable
certainty in the minds of competent scientists that the substance is
not harmful under the conditions of its intended use.'' This commenter,
with respect to ``potable water,'' suggested that potable means more
than just safe, and that water can be used for drinking, cooking,
bathing, and other household needs, and therefore must meet the
required (chemical, biological and physical) quality standards at the
point of supply to the users, and be of an acceptable color, odor and
taste for each personal and domestic use. One commenter stated that
``if water is coming from a public source, it is safe to assume the
water is fit to drink.'' A commenter believed that HUD should establish
a national definition, not driven by local standards or politics. Many
commenters stated that it is appropriate for HUD to rely on EPA
determinations under the Safe Drinking Water Act (``SDWA''). At least
two commenters, however, while supporting a general reliance on EPA's
SDWA determinations, pointed out that those determinations are not
acceptable in the presence of lead service lines.
HUD also asked several questions related to detection and
enforcement of safe water standards, including how should HUD monitor
whether water is safe; what elements should be reviewed during a
physical inspection to determine water safety; and whether inspectors
should verify that a municipal water supply authority is in compliance
with EPA's Safe Drinking Water Act?
A number of commenters expressed an opinion that HUD should not be
involved in ``monitoring'' water safety; rather, HUD should defer to
the agencies that currently monitor the water supply under State and
Federal law. One commenter noted that should HUD choose to enter this
area, participation should be limited to confirmation that the property
is served by a municipal water system through a water bill or that any
private well system is monitored and tested regularly. Another
commenter stated that adding a new safe water monitoring layer to
something that is already regulated and monitored on a State and
Federal level seems a bit redundant and unnecessary. Another commenter
offered that if HUD is concerned about water quality, then HUD, either
internally or through the EPA, should be able to perform regular,
routine inquiries about public water systems around the country to
ensure that those systems are in compliance with the Safe Drinking
Water Act.
Similar to monitoring, a number of commenters expressed an opinion
that HUD should not be involved in conducting inspections related to
water safety; or, in the alternative, that HUD conduct only the most
cursory inspection with respect to water safety. One commenter opined
that no elements should be reviewed during the physical inspection to
determine water safety; that a PHA has met its responsibility if there
is hot and cold running water. Another commenter suggested that HUD's
inspection be limited to a visual observation of water for
contamination or discoloration. Other commenters suggested that no
elements should be included by HUD in requirements for physical
inspections other than a visual inspection for poorly maintained pipes
and valves and confirmation that water flow is present and can maintain
at least 120 degrees.
One commenter suggested that as one element of inspection, HUD
should seek to determine that owners are not delinquent in their water
and sewer
[[Page 30456]]
accounts for individual properties, in order to ensure that properties
are not at risk for service disconnection. Several commenters suggested
that HUD could review local Water Quality Reports that are compliant
with the U.S. EPA's National Primary Drinking Water Regulation for
Consumer Confidence Reports, and/or other reports provided by
municipalities/water supply authorities.
Two commenters opined that inspectors trained in water sampling
techniques could take the water samples directly and send them to a
certify laboratory for analysis. One commenter stated that HUD should
monitor drinking water safety by testing housing facility
infrastructure for contamination, not just public water systems.
Another commenter stated that HUD, either internally or through the
EPA, should be able to perform regular, routine inquiries about public
water systems around the country to ensure that those systems are in
compliance with the Safe Drinking Water Act. If not, the Federal
Government should work with the local jurisdiction managing the public
water system to ensure those systems are upgraded and safe. The
commenter noted that HUD can also inform PHAs in those areas that there
may be water contamination so that they may inform their residents and
provide those residents options for safe drinking water if the local or
State government has yet to do so.
One commenter recommended that HUD must conduct its own monitoring
of water safety in order to ensure that housing it supports provides
safe and potable water to its residents. The commenter suggested
periodic monitoring of every unit for lead; PFAS and other unregulated
yet harmful contaminants; Legionella; and, objectionable smell, taste,
color, or clarity, and that monitoring and sampling should be done in
accordance with the best science to achieve accurate results. The
commenter also stated that HUD must immediately notify residents of
unsafe or unpotable water, what is being done to rectify the condition,
and when the condition has been resolved.
With respect to whether HUD inspectors should verify that a
municipal water supply authority is in compliance with EPA's Safe
Drinking Water Act, the majority of commenters replied in the negative
with several noting that building owners have zero recourse if the
water provider is not in compliance with the Safe Drinking Water Act.
One commenter expressed that if HUD seeks to verify the availability of
safe and potable water for residents, the Department should communicate
with local water system administrators rather than with property owners
and agents. One commenter stated that SDWA is designed to measure a
water system's compliance with Federal standards, which the commenter
finds lacking in several respects. This commenter stated that Federal
lead standards, EPA enforceable limits, and maximum SDWA contaminant
levels are out of date and do not reflect latest scientific evidence,
with the result that some dangerous contaminants can be present in
water within homes even though the water provided by the water system
is free of the bacteria.
Some commenters supported the notion that HUD should verify SDWA
compliance; one commenter strongly supported this idea. This commenter
stated that HUD should create a uniform standard of water safety
monitoring at HUD facilities nationwide. Another commenter opined that
water safety should be determined using the guidelines of the EPA's
Safe Drinking Water Act and that an inspector needs to ensure that the
local municipal water supply authority is in compliance.
Those commenters who did suggest physical inspection criteria
offered a number of recommendations. Multiple commenters suggested
primary reliance on official reports from other governmental entities;
one of these suggested that where there is no public water supply HUD's
inspection should rely on appearance, odor and/or taste. Another
commenter suggested that a basic turbidity test from randomly selected
units at the property might give some immediate feedback for an
inspection report about whether a plumbing issue might be impacting the
potable drinking water, and that an inspector could also take a quick
pH test at the same source. This same commenter suggested that
privately sourced water could be sent to a laboratory for testing.
A commenter suggested that any Point of Use or Point of Entry
treatment device should be identified and inspected to ensure it is
properly installed and maintained, and that hot water tanks be
inspected and drained, as appropriate. This commenter recommended
inspection criteria for well water systems, including well inspection;
proximity to and quality of any onsite or neighboring septic system;
total coliform/microbial testing; lead and copper testing, and chemical
testing for all known potential chemical contaminants in the aquifer.
HUD Response: HUD appreciates comments on how water is monitored,
and the shared responsibility for ensuring drinking water safety. HUD
notes that drinking water requirements are not new to HUD standards.
Requirements already exist within the HQS and UPCS regulations, with
additional details in the HQS inspection guidance; the NSPIRE
regulations consolidate and clarify the requirement. At this final rule
stage, HUD is including a requirement that the unit provide safe
drinking water, regardless of the source (well vs. municipal water
supply). Additional information about this requirement is provided in
the NSPIRE Standards notice proposed for comment on June 17, 2022.
When there is public health risk related to drinking water from a
public source, the public water system is required under US
Environmental Protection Agency (EPA) regulations \11\ to notify its
customers. Notice typically includes local media alerts, postings on
public water system websites and alerts in water bills. Given this, HUD
expects that PHAs, residents and landlords participating in the Section
8 programs will have a minimal burden to monitor public water safety.
If a local public water system notifies a landlord or PHA that the
public water is contaminated and recommends action, landlords
participating in the Section 8 program are already expected to ensure
that the action is taken. This same expectation applies to PHAs
operating public housing. This rule standardizes both regulations to a
single requirement and adopts the existing approved acceptability
criteria for drinking water for all applicable programs.
---------------------------------------------------------------------------
\11\ 40 CFR part 141, subpart I.
---------------------------------------------------------------------------
HUD adopted the term ``safe'' to align its regulations with the
term used under the Safe Drinking Water Act, as well as to support the
broad HUD-wide goal to provide safe, habitable housing for residents.
Water for drinking, bathing and other activities must be available to
residents. After consideration of public comments, HUD has decided to
continue to defer to EPA's determinations for allowable levels of
drinking water contaminants, and what is considered safe. HUD expects
that landlords, PHAs, and residents will be advised by a public water
system, State or local health departments, or the EPA when the public
water is unsafe and can rely on this determination without further
testing. These alerts will be distributed through local media alerts,
the public water system website or within water bills. PHAs and owners
should be aware of local water safety alerts and take action to either
implement recommendations or provided an alternate source of safe
[[Page 30457]]
water, such as bottled water. Often, the impacted jurisdiction will
provide bottled water for free. For more information about requirements
for public notification, see <a href="https://www.epa.gov/dwreginfo/lead-and-copper-rule">https://www.epa.gov/dwreginfo/lead-and-copper-rule</a>. Regarding the suggestion of a visual inspection for
contamination or discoloration, this observation would not indicate if
the water had high levels of lead. Additional details about the water
inspection process will be provided in the NSPIRE Standards notice.
The NSPIRE rule, and the REAC physical inspection, does not require
detailed reviews of documentation, and there is no current HUD
regulatory requirement that PHAs and property owners maintain
documentation of water and sewer payments or local water quality
reports. This would be a substantial new administrative burden not
contemplated in the proposed rule. Additionally, since this information
is not federally standardized, it would add a significant time burden
to the inspection. HUD has consulted with the EPA on whether it could
monitor reporting in the Safe Drinking Water Information System
(SDWIS), but the information reported is delayed, and may not indicate
whether there is a current exposure risk. For example, when lead is
identified through routine system monitoring, the public water supply
can take actions to alter water chemistry to reduce leaching. In HUD's
administrative notice, HUD intends only to include a requirement that
PHAs and landlords be aware of local drinking water alerts that are
already required under EPA regulations and to take action to implement
an acceptability criteria variation (e.g., point of use water
filtration) when necessary. These alerts are issued when actions taken
by the public water system are not sufficient and there may be a risk
of exposure. HUD also continues to evaluate means of using publicly
available data to keep residents safe.
HUD declines to include a requirement under NSPIRE for inspection
of water treatment devices, point of use filters, well systems, or
water testing. Section 5.703(d)(1) requires that the unit include an
adequate source of safe water and does not specify or establish
different contaminant standards for whether the source is municipal or
well. As discussed above in the preamble, HUD has removed the term
``potable'' and has clarified that safe drinking water must be provided
in the kitchen.
Question for Comment #3: Site and Neighborhood Standards
HUD asked whether the site and neighborhood standards as found in
24 CFR 982.401(l), should be included in the regulation or only in the
inspection standards. HUD also asked whether all of the explicit
standards should be included or if there are certain site and
neighborhood standards that HUD should consider changing. HUD received
the following comments in response.
Site & Neighborhood Standards Generally
Several commenters stated that PHAs should be held responsible for
environmental conditions within their control and that the standards
remain relevant because it may sometimes be necessary to invoke site
and neighborhood standards when conditions are genuinely unsafe,
especially for children. A commenter stated that site and neighborhood
standards have historically been important to ensure a balanced
distribution of public housing projects within a locality.
A commenter suggested that a regulation for a site & neighborhood
inspection is unnecessary because most of the facilities already follow
the HUD and Tax Credit guidelines to not build in areas of industry,
railroad tracks or traffic congestion; another noted that it would not
make sense to include these standards in the regulation when the vast
majority of inspection standards will not be in the regulation. Another
commenter pointed to the difficulty inspectors would have enforcing
local site and neighborhood standards.
Commenters cautioned that these standards could be prejudicial
against older housing and transit-oriented properties and suggested
that historical buildings should be exempted from the testing standard
to preserve the rarity and quality of materials and finishes in these
buildings.
Commenters expressed concerns that site and neighborhood standards
can be subjective and very hard to judge, unless an area clearly
represents a serious health hazard or safety concern. Thus, commenters
urged HUD to provide explicit standards and to clarify how it
determines whether there is a danger because it is important for HUD to
provide specific and measurable guidance so that PHAs are able to
incorporate any changes into existing processes. A commenter urged HUD
to write the regulations to specify that properties must be
``reasonably free'' of ``serious adverse environmental conditions'';
another suggested HUD add ``landslide'' and ``hill slide'' to the term
``mudslide'' and cited to examples of HUD-assisted properties being
vacated due to hill slide events in both public housing and project-
based housing.
With respect to the Section 8 program, where there is no scoring
system similar to the PHAS system, a commenter suggested HUD clarify
whether these items require failure of an HQS inspection.
One commenter opined that the site and neighborhood standards
should be included in the inspection standards and the regulation,
because there are no qualifications for inspectors and leaving
enforcement to individuals who can only rely on instructions provided
by their locality would defeat the implementation of establishing a
uniform standard. This commenter also opposed giving these inspectors
discretion, which the commenter said would effectively render them
legislators.
HUD Response: HUD appreciates the comments related to the
importance of site and neighborhood standards to the NSPIRE rule. HUD
believes that expanding the existing HQS site and neighborhood
standards from Sec. 982.401(l) to apply to additional programs would
negatively impact existing properties for circumstances beyond their
control and threaten already scarce affordable housing resources. With
this final rule, the original text of Sec. 982.401 is removed and the
regulation refers to Sec. 5.703. Site is included as the example
``building site'' at Sec. 5.703(c). Neighborhood conditions are not
directly included in Sec. 5.703(c). The listed elements of the outside
must be functionally adequate, operable, and free of health and safety
hazards. The final subordinate NSPIRE Standards notice, to be published
before this rule is effective, will provide more details on areas and
components inspected. HUD will continue to update and publish guidance
on other environmental hazards that are not fully addressed by NSPIRE,
such as radon, lead-based paint, carbon monoxide, and other
environmental health hazards. The NSPIRE inspection is not intended to
serve as the only way HUD assesses compliance with all environmental
health laws and related requirements. Compliance is verified through
other oversight processes performed by different HUD staff. For
example, radon is considered as part of certain environmental reviews
conducted under 24 CFR parts 50 and 58. Because the revised Sec.
982.401 will refer to the new Sec. 5.703, the term ``mudslide'' is no
[[Page 30458]]
longer in regulation, and there is no need to add ``landslide'' or
``hill slide'' as examples in regulatory text. Finally, NSPIRE
inspections will include the elements identified as ``outside,''
including the site as provided in the NSPIRE Standards notice. But the
NSPIRE inspection will not include environmental sampling. The focus of
NSPIRE is more toward residents' units, where residents spend the most
time.
Inspectors using the NSPIRE standards will be trained in the
standards and have experience in performing housing inspections. The
final NSPIRE Standards notice will provide guidance on what to
evaluate, and the NSPIRE Scoring notice will provide factors for
scoring. A software tool will be available to inspectors and PHAs to
help ensure assessments are consistent and accurate. Property owners
and managers will continue to have a process to appeal physical
inspection scores to HUD, and REAC will continue to have a quality
assurance team to monitor inspection scoring and trends. The process
for appeals is provided in this final rule at Sec. 5.711(c), (d) and
(e) and the Administrative Procedures notice.
Environmental Conditions
Many commenters stated that the property or PHA should not be held
accountable for adverse environmental conditions outside of its
control, such as flooding, poor drainage, sewage hazards, mudslides,
air pollution, smoke or dust, excessive noise of vehicular traffic, and
issues with adjacent lots or buildings. A commenter noted that property
owners' ability to address these issues may be restricted by local
laws. Another noted that fire hazards, garbage and infestations can be
the result of tenant behaviors within their units, common areas or the
site grounds.
Commenters pointed out that if properties are penalized for these
issues, the voucher program may have fewer units available for families
as landlords are increasingly frustrated with the inspection process.
One commenter stated the neighborhood standards may also preclude
provision of assistance to existing homeowners in substandard housing
conditions that reside in rural communities where drainage, streets,
sidewalks and other neighborhood improvements are not found or also
require improvement.
Commenters suggested that the site and neighborhood standards
should be considered for properties only at the time of development,
prior to final endorsement, or prior to entering into a rental subsidy
contract.
HUD Response: HUD appreciates the comments regarding site and
neighborhood standards and environmental conditions that may be outside
the control of the property owner or PHA. In addition to HUD's
responses above, NPSIRE inspections and scoring are more focused on the
units, versus other inside and outside areas. This is because the unit
is where residents spend most of their time, and the safety and
habitability of the unit is critical. Additional details on inspectable
areas and deficiencies were proposed for comment in the subordinate
NSPIRE Standards notice and will be finalized before the rule is
effective.
Questions for Comment #4-11 on HOME and HTF
HUD asked a number of related questions pertaining to minimum
housing condition standards, minimum deficiencies, and other
appropriate standards across HOME and HTF, including HOME Tenant-based
rental assistance (TBRA) properties, in a variety of contexts (e.g.,
rehabilitation, rental, home ownership and affordability period) to
solicit feedback on appropriate standards to ensure that HOME-assisted
and HTF-assisted housing remains decent, safe, sanitary and in good
repair.
Comments Regarding HOME and HTF Standards Generally
Across the different scenarios presented, several commenters
expressed a need for a uniform, consistent set of standards, not only
for HOME and HTF, but across all federally assisted housing programs.
One commenter stated that minimum standards should not be asymmetrical
depending on program or resident type, but broad sweeping to fit all
sorts of housing units. The same commenter recommended that inspectors
for HOME and HTF programs be provided clear definitions to limit
firsthand interpretations of the guidance as well as appropriate
supplemental training on future guidance.
HUD Response: HUD appreciates and agrees with the comment with
respect to consistency and has aligned standards with only minor
exceptions. The NSPIRE rule aligns HOME and HTF standards with other
HUD-assisted housing programs subject to NSPIRE. There will be some
differences by project type in certain cases (e.g., rental project,
homebuyer acquisition, or units occupied by tenants receiving HOME
TBRA). While the NSPIRE rule aligns standards for HUD-assisted housing
programs where these programs share common attributes (e.g., within the
dwelling unit), HUD agrees with comments pointing out that the minimum
deficiencies that must be corrected in a HOME- or HTF-assisted project
should vary in certain cases. This is because NSPIRE includes standards
for areas or components of a Multifamily building that do not exist in
a single unit assisted with HOME TBRA or HOME or HTF-assisted single-
family housing of one to four units. In addition, HOME and HTF may be
used to assist a homebuyer to acquire housing, which is a fundamentally
different type of housing project compared to the HUD rental programs
for which NSPIRE is designed. HUD is concerned that unduly onerous
property standards may severely limit the choice of unit for an
individual or family receiving assistance for homebuyer acquisition. It
is HUD's intent to impose property standards that ensure both HOME- or
HTF-assisted homebuyer acquisition projects are decent, safe, sanitary
and in good repair but also sustainable so that the homebuyers are not
subject to the financial burden of a system replacement or major
repairs soon after acquisition.
Consequently, HUD has determined that it is necessary to impose
HOME and HTF minimum property standards consistent with NSPIRE's focus
on safety and habitability, but which vary based on project type to
balance the need for both quality and availability of housing. As
requested by commenters, HUD will provide additional guidance and
training to ensure that all PJs and HTF grantees understand the
property standards requirements. HUD's Office of Community Planning and
Development (``CPD Office'') will issue an NSPIRE notice describing the
applicability of the NSPIRE Standards for HOME and HTF.
Comments Regarding Minimum Housing Condition Standards for HOME and HTF
Housing
Some commenters discussed the suitability of the current HQS as an
appropriate standard to ensure that the housing remains decent, safe,
sanitary and in good repair. One commenter believed that HQS in and of
itself could apply across the programs covered by the proposed rule.
Another commenter stated that HQS, in combination with the current
HomeFirst inspection form, would establish a robust minimum housing
condition standard.
One commenter recommended adoption of International Residential
Code (IRC) for single family new construction projects and
rehabilitation projects. With respect to rehabilitation, the commenter
further recommended
[[Page 30459]]
inclusion of minimum health and safety standards in addition to IRC, as
not all health and safety concerns are addressed by IRC rehabilitation
requirements.
With respect to HOME TBRA specifically, the commenter urged HUD to
consider that many participants elect to reside in single-family
housing that may not meet the requirements set forth for HOME rental
properties and expressed an opinion that existing Housing Quality
Standards are well suited to both homebuyer, acquisition only, and HOME
TBRA projects.
A commenter recommended that HUD include Sec. 982.401(l) and (h)
and other environmental hazard considerations.
HUD Response: HUD understands that some commenters prefer HQS as a
standard for ensuring that HOME- and HTF-assisted housing is decent,
safe, sanitary and in good repair upon completion and throughout the
period of affordability for rental housing. HUD believes that the
transition to NSPIRE will retain what commenters appreciate about HQS
while accomplishing NSPIRE's goal of aligning standards across HUD
programs.
For the HOME and HTF programs, CPD will issue a notice to implement
the NSPIRE Standards and identify deficiencies related to the NSPIRE
Standards for these specific programs. In CPD's experience with HQS as
a minimum property and inspection standard for HOME TBRA units and
certain HOME and HTF rental projects, HOME- and HTF-assisted housing
have different statutory requirements than other NSPIRE programs and
therefore, other factors that must be considered in implementing
revised property standards. This rule revises the HQS regulations at
Sec. 982.401 to point to Sec. 5.703. Due to this, HUD will implement
requirements for HOME- and HTF-assisted projects that limit the
applicability of the NSPIRE Standards to accommodate program-specific
requirements.
HOME and HTF programs are formula block grants that allow for local
decision-making by the State and local governments that administer
these programs. Therefore, HOME and HTF cannot impose property standard
requirements that ignore State and local codes. This requirement for
compliance with State and local codes is also statutory under the HOME
program. Consequently, it is not possible for the NSPIRE Standards to
replace State and local codes in HOME and HTF-assisted projects. In the
absence of applicable State or local codes, HOME and HTF program
regulations apply the IRC or International Building Code (IBC) of the
International Code Council to new construction projects, as applicable
to the type of housing, and the International Existing Building Code
(IEBC) of the International Code Council to rehabilitation projects, as
applicable.
References in HOME to Sec. 982.401(l) and (h) and other
environmental hazard considerations are now covered by Sec. 5.703(c)
and have been updated. HUD agrees that elements of Sec. 982.401(l) and
(h) and other environmental hazards are important and will be addressed
in the supplemental CPD NSPIRE notice that will apply to HOME and HTF.
Comments Comparing NSPIRE Standards to HOME and HTF Housing and Minimum
Deficiencies
One commenter, in comparing the NSPIRE Standards to minimum
deficiencies that must be corrected in HOME- and HTF-assisted
rehabilitation projects at Sec. Sec. 92.251(b) and 93.301(b) or which
must be corrected prior to HOME- and HTF-assisted homebuyer acquisition
of standard housing, opined that the HomeFirst inspection form meets or
exceeds the NSPIRE standards for minimum deficiencies that must be
corrected since it incorporates State and local standards of housing
safety and maintenance. Another commenter stated that there should not
be a minimum or maximum of deficiencies that must be corrected during
an onsite inspection; rather, there should be a system in place by
which as many hazards are identified in a home, evaluated, and
prioritized based on their severity for potential health and safety
outcomes affecting the occupants. Once there is a prioritized list, the
owner would address those hazards in the order of outcome severity. The
same commenter specifically noted that addressing lead hazards should
be part of that high standard for housing assisted with HOME or HTF,
and that lead hazards assessed should include lead-based paint, lead in
the drinking water with point of use testing, and soil contamination.
With respect to whether HUD should establish different minimum
deficiencies that must be corrected in HOME- or HTF-assisted rental
housing and homebuyer or owner-occupied housing rehabilitation projects
at Sec. Sec. 92.251(b) and 93.301(b), a commenter stated that instead
of having minimum deficiencies that must be corrected, the property
owner/manager should address the hazards based on the severity (i.e.,
extreme, severe, serious, or moderate) of potential health and safety
outcomes affecting the occupants.
HUD Response: Under the HOME and HTF regulations, an owner of a
rental property must immediately correct health and safety
deficiencies. In addition, the lead-based paint requirements at 24 CFR
part 35 continue to apply to HOME and HTF-assisted rehabilitation
projects and during the period of affordability for rental projects;
these regulations are not proposed for revision and this final rule
includes cross-references to the applicable sections of part 35,
including subparts B, J, K, M, and R. HUD disagrees that the programs
should not set minimum deficiencies that must be corrected following an
onsite inspection of rental housing during the period of affordability.
If HOME or HTF funds are invested in a rental development project, HUD
must ensure that the project remains decent, safe, sanitary and in good
repair throughout the period of affordability. This is a statutory
requirement for HOME. Furthermore, the HOME and HTF programs require
that PJs and HTF grantees underwrite a rehabilitation or new
construction rental project to ensure that funding is available to make
necessary repairs throughout the period of affordability. Therefore, it
is reasonable to expect HOME and HTF projects to support necessary
repairs to maintain the housing at a standard that meets HOME and HTF
minimum requirements and the PJ or HTF grantee's ongoing property
standards.
HUD does not agree that the HQS, in combination with the current
HomeFirst inspection form, would meet the new standards established
with the NSPIRE final rule.
Comments Regarding Minimum Deficiencies for Small HOME and HTF
Rehabilitation Projects
With respect to whether HUD should establish different minimum
deficiencies that must be corrected in large and small HOME- or HTF-
assisted rehabilitation projects at Sec. 92.251(b) and Sec.
93.301(b), commenters replied in the negative, and generally repeated
the feeling that standards should be uniform across programs and
occupancy categories. With respect to how HUD should define a large
housing project, one commenter suggested that the appropriate threshold
is 40 or more units.
HUD Response: HUD agrees with commenters and will not establish
different minimum deficiencies for large and small HOME- and HTF-
assisted rehabilitation projects in this final rule.
[[Page 30460]]
Comments Regarding Minimum Deficiencies That Must Be Corrected for HOME
or HTF Housing
With respect to whether HUD should establish different minimum
deficiencies that must be corrected for HOME or HTF-assisted
rehabilitation and homebuyer or owner-occupied acquisition of standard
housing projects at Sec. 92.251(c)(3) and Sec. 93.301(c)(3), one
commenter opined that no updates to the minimum deficiency standards
are recommended at this time.
Another commenter responded in the affirmative, noting that the
current requirement for single-family housing to meet the requirements
of UPCS includes inspecting for non-applicable items, and exceeds the
standard for other federally assisted or insured mortgage programs. The
commenter recommended that units for acquisition be subject only to
homebuyer inspections as required by FHA financing, and not subject to
a separate standard.
HUD Response: Updates to the required minimum deficiencies that
must be corrected in a HOME- or HTF-assisted rehabilitation or
homebuyer acquisition project are necessary because the current
regulation references UPCS, which will no longer exist when this rule
becomes effective. HUD agrees with the commenter that minimum
deficiencies to be corrected should vary based on project type in
certain cases because not all the standards of NSPIRE, which was
developed for ongoing inspections of Multifamily rental developments,
will apply to single-family housing.
Comments Regarding Minimum HOME TBRA Written Property Standards
With respect to whether HUD should establish minimum written
property standards requirements for housing occupied by tenants
receiving HOME TBRA at Sec. 92.251(f) that exceed or are different
than minimum requirements for the ongoing condition of HOME-assisted
rental housing, one commenter noted that tenants of HOME TBRA often
reside in single-family housing rather than in multifamily rental
developments and that the use of a standard that is heavily focused on
large rental developments, such as UPCS, would include items that are
not present in single-family housing, and may neglect to fully inspect
for hazards that are generally only present in single-family housing.
With respect to whether HUD, in the alternative, should apply the
NSPIRE standards (not to include the inspection procedures,
administrative processes for scoring and ranking, or the enforcement
requirements of NSPIRE) to housing occupied by tenants assisted with
HOME TBRA at Sec. 92.251(f), one commenter stated that this was a
reasonable approach. The commenter stated that HUD can apply NSPIRE
standards but allow local jurisdictions to establish stronger local
standards which would apply in that jurisdiction. The NSPIRE standard
should be a minimum, but if there are higher quality standards that
local jurisdictions establish, those should be allowable as well.
Another commenter replied in the negative, stating that HUD should
treat this situation consistent with the proposed rule for HCV and PBV,
and not another standard.
In response to whether another national housing quality or
condition standard exists that HUD should apply to housing occupied by
tenants assisted with HOME TBRA, one commenter recommended the use of
the same standard for HOME TBRA as for the Section 8 HCV program, even
if this standard is different than the standard for HOME rental
projects. The commenter reasoned that HOME TBRA closely mirrors the
Section 8 HCV program, and both programs are often administered by the
same agencies, allowing them to utilize one common standard that is
most applicable to the project type.
HUD Response: HUD agrees with commenters who requested consistency.
The NSPIRE rule establishes standards that will cover all listed
programs, with exceptions only where there are differing statutory or
programmatic requirements. For example, the regulation at Sec.
92.251(b)(1)(viii) continues to exclude HOME-assisted projects and
units from using the scoring, item weights, criticality, and other
requirements contained in Sec. Sec. 5.705-5.713. Additionally, HOME
PJs must create their own ongoing property standards for HOME rental
housing or housing occupied by tenants receiving HOME TBRA, which must
comply with State and local code requirements and ordinances. Where
there are no applicable State or local code requirements and
ordinances, the HOME PJ will be required to inspect the property so
that the property does not contain the specific deficiencies prescribed
by HUD based on the applicable standards in 5.703 and published in the
Federal Register. By doing this, HUD is establishing c HOME PJs require
owners maintain the housing as decent, safe, and sanitary housing in
good repair.
Question for Comment #12: Special Housing
HUD asked whether the application of unique standards to certain
specific special types of housing (i.e., single room occupancy housing;
congregate housing; shared housing; and manufactured homes) in the HCV,
PBV, and Moderate Rehabilitation Programs should be expanded to apply
to CoC, ESG, and HOPWA programs as well.
Two commenters expressed general agreement with the expansion of
the unique standards; however, one of these commenters limited
endorsement of the application of the unique standards to CoC PBRA. One
commenter stated that the unique standards should be expanded to apply
to CoC, ESG, and HOPWA programs. The commenter opined that if a
recipient of CoC, ESG, or HOPWA funding determines that using a special
type of housing is the best course of action for a specific household,
then they should be able to use that type of housing and not be
penalized through poor inspection scores based off of standards that do
not make sense for the unit. The commenter also noted that applying the
unique standards to CoC, ESG, and HOPWA will help standardize
inspection protocols across HUD programs.
One commenter stated that the unique standards should apply to CoC,
ESG, and HOPWA programs in order to fulfill HUD's intent to align
inspection requirements for all housing assistance programs to decrease
the complexity and uncertainty associated with participating in HUD's
programs that may deter some owners from future involvement, as well as
to decrease regulatory burden. The commenter further suggested that HUD
consider other housing types recently implemented by municipalities to
address their housing crises such as the approval of Accessory Dwelling
Units.
One commenter stated that the NSPIRE protocol should consider
universally accepted norms associated with healthcare, assisted living
and memory care occupancies, and that these should include specific
allowances for egress issues associated with normal elopement risk
reduction inherent to these facilities. The commenter further stated
that the health care facility concept of ``RACE'' (Rescue, Alarm,
Contain and Extinguish) should be accepted by NSPIRE as a standard
method of fire and life safety within healthcare and senior facilities,
greatly reducing the necessity of window egress exits.
One commenter stated that the unique housing standards in part 982
should
[[Page 30461]]
not be applied to ESG since the minimum standards for permanent housing
in Sec. 576.403 provide more flexibility for the program participant
and consistency for the administrator. The commenter also recommended
that the proposed addition of Sec. 576.403(d) should be revised to
state, ``for the first 30 days in which a program participant receives
homelessness prevention assistance, the recipient or subrecipient may
provide services under Sec. 576.105(b) and Sec. 576.106 to help the
program participant remain in their unit without inspecting the unit or
determining whether it meets the requirement in this section.'' The
commenter reasoned that the payment of rental arrears or rental
assistance under Sec. 576.106 are often necessary to prevent eviction,
and that requiring the habitability inspection within 30 days of
assistance while also providing rental arrears or assistance would
decrease the disruptive process of eviction. The commenter recommend
further that HUD provide guidance about what resolution is required of
a grantee if the unit that was assisted in the 30-day period does not
meet the standard but should not require repayment of assistance
provided during that term.
HUD Response: HUD appreciates the comments related to special
housing types and the needs of participants in tenant-based rental
assistance, as well as the feedback about consistent standards across
housing programs, including expanding unique standards to certain types
of housing within CoC, ESG and HOPWA programs. The NSPIRE Standards
will apply to these programs, with some limitations that will be
described in the CPD NSPIRE notices. For the HCV and PBV programs,
Section 982.605 continues to allow for alternate requirements for
sanitary facilities, food preparation, and space and security if there
is no applicable local code standard for SRO housing. Housing that
meets the affirmative habitability standards in Sec. 5.703(d) can be
eligible for HUD assistance, including Accessory Dwelling Units. With
alignment of housing standards, the Department will better focus on
habitability and the health and safety of residents.
With respect to universally accepted norms associated with health
care, HUD evaluated many of these norms including RACE. Facilities that
need to keep doors or windows locked for resident safety (e.g., memory
care facilities) or to comply with other legal requirements, such as
Federal civil rights laws, will be allowed to request a technical
correction and score adjustment after the inspection. More information
will be in the Administrative Procedures notice. In addition, Sec.
5.703(d) of this rule requires smoke detectors consistent with the
requirements in NFPA 72, and more information will be provided in the
NSPIRE Standards notice.
HUD will issue additional guidance on Sec. 576.403(f) as pertains
to payment of rental arrears or rental assistance and preventing
evictions.
Question for Comment #13: Affirmative Requirements
HUD asked for input with respect to the inclusion of certain
affirmative requirements at the final rule stage by adding deficiencies
for the lack of a presence of certain specific features in HUD-assisted
units. Specifically, HUD asked for input related to electrical outlets
and switches; GFCIs and AFCIs; HVAC (permanently installed heating
source); guardrails; and lighting.
General Comments
Two commenters noted their general agreement with all of HUD's
suggestions, without providing any specific comments. Many commenters
sounded a common theme that HUD should weigh very carefully any attempt
to introduce affirmative requirements across the entire portfolio of
HUD-assisted housing, in light of all of the relevant considerations to
the differences in such housing. One common theme was centered on the
difference between older and newer housing. For example, one commenter
noted that most new construction units have more than enough electrical
outlets in each bedroom and living room. However, older cities, such as
New York City, have aging housing stock which might not support
multiple new outlets without upgrading to a new wiring system. Another
commenter opined that properties built in the 1940s should not be held
to the same standards as those more recently built, and that even those
that may have undergone some modernization since initially built were
modernized to the codes and standards of the time during which they
were modernized. The commenter pointed out that to hold older
properties to the same standards of recent buildings would be a
financial burden and that the PHA has neither the funds nor the staff
to stay in compliance and would discourage private property owners from
participating in HUD programs.
Another common theme related to suggestions for HUD restraint
centered around the existence of various housing codes, which
commenters argued obviated the need for HUD to impose additional
requirements. For example, one commenter pointed out that HUD's
proposed requirements would not be in alignment with local code and
would set higher expectations than local code, which could have far-
reaching implications on the development and maintenance of properties
and lead to much higher costs. Another commenter opined that in some
cases the proposed changes represent very significant upgrades or
overhauls and urged HUD to either defer to local building codes, or to
slowly phase in the affirmative safety requirements, as well as to
consider approving additional project or capital funds to cover the
costs of these upgrades. Two commenters noted that to the extent that
existing properties are subject to new standards, HUD must refrain from
penalizing (unintentionally or otherwise) PHAs, owners, and operators
that may not have funds for upgrades, particularly when those
properties are in compliance with local/State codes which reflect local
needs and conditions. Commenters suggested that the electrical
requirements should match the code at the time the building was built,
and that requiring electrical upgrades to existing building would be a
financial hardship on building owners unless the building is being
renovated. A commenter expressed that HUD should align the proposed
requirements to the UCC and PHA's local codes.
With respect to the proposed addition of new standards, generally,
one commenter noted that some owners with older properties may decide
not to participate if HUD requires significant upgrades to their units
that they are not required to perform if they rent to someone in the
private market. Another commenter noted that funding to maintain and
improve properties is in limited supply, and that properties that are
compliant under current standards should be considered compliant under
the new standards, and that any new standards should apply only to new
construction and properties that undergo renovation. One commenter
agreed that all potential deficiencies that HUD is considering appear
to be reasonable for safety considerations, but noted that to the
extent that existing properties are subject to new standards, PHAs,
owners and operators should have an ample notice period to bring their
units into compliance. Another commenter opined that the proposed
requirements could create new costs for PHAs and limit the supply of
housing available to voucher holders. As such, HUD should assess the
total cost to PHAs to comply. One commenter, while agreeing that the
proposed features may be necessary, cautioned that the cost to produce
the features must be heavily
[[Page 30462]]
weighed in view of additional affordable units lost versus created or
preserved, and that dollars invested in these features will ultimately
reduce the available subsidies for those applicants waiting to be
housed, further straining American's scarce affordable housing stock.
HUD Response: HUD appreciates the comments about differences in
housing stock related to age and location and reaffirms that the NSPIRE
Standards will balance the need for housing with the mission to ensure
that the housing is decent, safe, sanitary and in good repair, as well
as the challenge of having consistent housing standards across programs
with very different levels of Federal investment and assistance. HUD
recognizes, and agrees with the commenters, that if inspection
standards and process for tenant-based programs are onerous and delay
lease up, private landlords may decline to accept a voucher and lease
to other renters.
HUD also recognizes the challenge of meeting State or local housing
codes for properties that will be covered by the NSPIRE Standards. Most
importantly, the forthcoming NSPIRE Standards will apply nationally and
provide standards for areas where there are no codes or safety
requirements. In other areas, the State or local requirements may be
more or less stringent. Often, State or local requirements account for
special conditions in that jurisdiction such as local climate
variation. Where a State or local requirement is more stringent that
NSPIRE, the property must meet that requirement as well as the NSPIRE
Standards.
With respect to comments regarding timelines to correct identified
deficiencies, and the ability of property owners or PHAs to fund
required renovations, the available time frame for response will vary
depending on the deficiency, the program, and the process. In this
final rule, HUD has revised ``severe health and safety'' to LT. HUD
also developed a secondary category for other severe, but not LT
deficiencies. Where a LT deficiency as described in Sec. 5.711(c) is
identified, the owner or PHA must correct it in 24 hours. For the HCV
program, response times for LT deficiencies must be corrected in
accordance with the HOTMA statute. HUD will discuss this matter further
in the final NSPIRE standards. Other deficiencies can be resolved as
described in existing program regulations. Those regulations are not
included in this rulemaking for revision. HUD recognizes that standards
should include reasonable expectations for repair, and the need for
work to be completed quickly and affordably. These expectations will be
described in the Administrative Procedures notice which will be
published before this final rule takes effect.
Comments Regarding the Electrical Outlet and Switch Requirement
Two commenters referred expressly to the presence of extension
cords. One of them, in agreeing with the proposed requirement,
explained that inadequate number of outlets within all habitable rooms
leads the occupant to rely on the usage of power-strips and extension
cords, and that these power strips and extension cords are often
overloaded with plugs from multiple appliances, a condition that could
lead to overheating and potential electrical fires. The commenter
further noted that the presence of such cords is also the cause of
trips and falls hazards which significantly affect elderly occupants.
The other stated that the proposed requirement should not be addressed
as an issue unless there are extension cords that could cause a trip
hazard.
Several commenters raised the issues of the age of the property in
question. One commenter stated that meeting this requirement may be
challenging in older units that do not have either two electrical units
or an electrical unit and a permanent light in all habitable rooms, as
older buildings may have to undergo substantial electrical work on the
unit, adding significant cost and burden to meeting the standard.
Another commenter stated that many older units include bedrooms where
there is only one outlet and no overhead lighting. One commenter
specifically noted that the age of the building should be considered
when determining the distance of the outlet to the sink. One commenter
felt that establishing minimum standards to be maintained by properties
that have already been constructed and under contract as affordable
housing for decades exceeds the reach of an inspection which is
supposed to ensure the property is being adequately maintained as safe,
decent, and sanitary, and crosses into the realm of specifying how that
property should have been constructed instead of confirming the
adequacy of its maintenance.
Two commenters specifically expressed concerns with respect to
historic properties. One noted that, because insured buildings are so
diverse in age and design, to add this requirement would be a hardship
on owners especially in older historic occupancies; the other opined
that historic buildings should be exempted from this proposed
requirement in order to preserve the high quality of fixtures and
materials.
One commenter expressed that the rationale in the rule (safety,
usability, and illumination) demonstrates why a one-size-fits-all
approach is inappropriate and opined that HUD should attempt to create
standards around safety, usability, and illumination or demonstrate,
with data, why the proposed requirements are necessary before adding
the proposed deficiency. One commenter, while expressing general
support for the proposed requirement, noted that wiring a second outlet
can represent a significant undertaking, and therefore urged HUD to
incorporate a mechanism for providing relief for housing under existing
rental assistance contracts which may not have been built/renovated to
this standard, providing a grace period until improvements can be made.
HUD Response: HUD appreciates feedback about the question of adding
a deficiency for an inadequate number of outlets. HUD took these
comments into consideration in drafting the proposed Standards notice
and will address this matter more fully in the final NSPIRE Standards
notice.
Comments Regarding the GFCI & AFCI Requirement
As with ``electrical outlet and switch,'' many of the comments on
GFCI and AFCI centered on issues of existing codes and/or
implementation with respect to older properties. One commenter noted
that while new and rehabilitated properties are in compliance with this
standard, older properties that have not been upgraded may not be able
to comply. Specifically, a commenter noted that bathrooms in older
properties tend to be smaller and built before the era of ground fault
indicators, but it is likely that GFCIs were installed at a later date
during an electrical modernization, and that to now require that an
outlet be located more than 6 feet from a shower or sink or be upgraded
with a GFCI is not only unreasonable but unfeasible as well.
Another commenter repeated its position that imposition of this
proposed requirement crosses into the realm of specifying how that
property should have been constructed instead of confirming the
adequacy of its maintenance. Commenters stated that GFCI outlet
requirement should be grandfathered, i.e., required where minimum
rehabilitation thresholds for modification have been surpassed and
that, if required in older Section 8 HCV units, owner participation may
be discouraged due to prohibitive costs to
[[Page 30463]]
modify. One commenter stated that it does not believe that owners of
older construction (pre-1975) housing units with proper operating
outlets need to be forced to upgrade to GFCI and AFCI outlets in order
for the unit to pass inspection and that, if HUD decides to move
forward with this requirement, additional capital resources should be
made available to convert to this protection. The commenter further
urged that all NSPIRE inspectors should be equipped with the proper
equipment to test the GFCI and AFCI outlets and not be reliant on a
visual inspection.
With respect to AFCI in particular, two commenters noted that AFCI
protection is a newer concept and would be burdensome and costly to
install in older buildings. Another commenter, while supporting the
GFCI proposal, distinguished AFCI as a higher standard that represents
a significant undertaking because it requires the removal and
replacement of circuit breakers. The commenter encouraged HUD to defer
to local building code requirements rather than imposing a blanket AFCI
requirement, and that, if the AFCI requirement is imposed, HUD should
incorporate a mechanism for providing relief for housing under existing
rental assistance contracts which may not have been built/renovated to
this standard, providing a grace period until improvements can be made.
Several commenters provided comments with respect to the GFCI
location standard (i.e., within 6 feet of sinks, tubs, showers; or
exterior, garage, or unfinished basement areas). Two commenters stated
that while it is reasonable to expect GFCI protection when an outlet is
within 6 feet of water or on the exterior of the building, it does not
believe it is necessary to require GFCI protection in garages and
unfinished basement areas.
With respect to refrigerators, a commenter questioned the need for
GFCI protection as they are often located within 6 feet of a sink but
are on their own dedicated circuit which does not have a GFCI
installed. The commenter felt that such a requirement would be
confusing.
HUD Response: HUD agrees that ARC Fault Circuit Interrupter (AFCI)
should not be required in existing buildings. The ARC Fault Circuit
Interrupter (AFCI) standard under consideration does not require the
installation of AFCI breakers where they are not present. The standard
requires the test button, when present, to function properly when
pressed.
With respect to the physical placement of Ground Fault Circuit
Interrupter (GFCI) protected outlets or breakers, HUD continues to
believe that Ground Fault Circuit Interrupter (GFCI) protected outlets
or breakers should be a requirement near water sources as specified in
the current Electrical--Outlet and Switch standard \12\ HUD agrees that
major appliances do not need to be plugged into a GFCI outlet. HUD will
address this matter further in the final NSPIRE Standards notice. The
requirement for GFCI outlets was added to the affirmative requirements
in Sec. 5.703(b), (c) and (d).
---------------------------------------------------------------------------
\12\ Electrical Safety Foundation International (ESFI), ``Ground
Fault Circuit Interrupters: Preventing Electrocution Since 1973''
<a href="https://www.esfi.org/ground-fault-circuit-interrupters-preventing-electrocution-since-1971/">https://www.esfi.org/ground-fault-circuit-interrupters-preventing-electrocution-since-1971/</a> (Last accessed May 2, 2022).
---------------------------------------------------------------------------
Comments Regarding HVAC (Permanently Installed Heating Source)
Several commenters expressed general approval of including a
requirement for a permanently installed heating source and suggested
there should be a deficiency for lack of proper heating. One commenter
opined that because not having heat could be a life-threatening
situation, not having a working and reliable heating system should be a
deficiency; another pointed out that use of a portable heater (with HUD
approval) is generally approved only in rural areas with warm climates,
and that HUD should include a requirement for a permanently installed
heat source. Another agreed that all units should have a heating source
but suggested that HUD define this to include a properly installed and
vented wood stove as a permanent heating source. One commenter urged
consideration for existing properties which do not meet this standard
and are not going through a substantial rehabilitation and suggested
that it might be appropriate to exclude existing developments from the
proposed requirement.
Other commenters differed. Two commenters stated that the
requirement would greatly burden older and historic homes that do not
have permanent heat sources installed, and that it would be more
reasonable to require heating to be UL rated for use as a heating
device so long as it is in safe, operable condition. One commenter
pointed out that many areas do not require the use of HVAC systems to
maintain a living space at a safe temperature, and that forcing
tropical properties to install heating equipment and polar communities
to install air conditioning is wasteful and unnecessarily complicates
property maintenance. The commenter suggested that establishing that a
target temperature range be attainable would be a more cost-effective
manner of protecting stakeholder interests.
One commenter stated that the heating source requirement is
addressed under flammable materials and that the proposed requirement
would be redundant and should be eliminated.
HUD Response: HUD agrees with the comments regarding the importance
of properly functioning heating systems. Adequate heat is essential for
the health and comfort of residents. The NSPIRE HVAC standard will
include a deficiency for a minimum temperature requirement during the
winter to prevent the potential negative health and safety effects of
cold temperatures, including hypothermia, which can be fatal. HUD has
replaced language originally in Sec. 982.401(e) regarding the
``thermal environment'' with a requirement in Sec. 5.703(e)(1) that
the unit not be subject to ``extreme temperatures'' and will finalize
provisions to meet the requirement in the NSPIRE standards.
HUD appreciates feedback particularly regarding tropical climates
and will take it into consideration for future standards iterations.
Additional consideration may be given to areas with extreme cold
weather that falls within the 3rd standard deviation of winter
temperatures. This will be revisited in subordinate Standards notices.
HUD agrees that presence of air conditioning units should not currently
be a requirement. The proposed NSPIRE HVAC standard does not include a
requirement for air conditioning, just that installed AC units provide
cool air, which is specified as lower than room temperature. NSPIRE
does not have a deficiency for a maximum temperature requirement during
the summer that is analogous to the minimum temperature winter
requirement for heat. Where State or local jurisdictions have such
requirements, covered programs must follow the more stringent
requirement.
HUD does not agree with commenters that suggested that portable
space heaters or fireplaces should be allowable as sources of heat.
Portable space heaters, electric and fuel burning, have been associated
with property fires and carbon monoxide poisoning. Fires and carbon
monoxide poisoning resulting from space heater usage have caused
serious injuries and deaths. Space heaters have also caused substantial
property damage to properties throughout the United States sometimes
leading to the complete loss of housing. Residents without adequate
heating have occasionally used gas and electric ovens to provide heat,
which have resulted in property fires and
[[Page 30464]]
carbon monoxide poisonings as well. Requiring a properly functioning
permanent heating source as an affirmative requirement in Sec.
5.703(c) removes the health and safety risks associated with portable
space heaters.
HUD also does not agree that a fireplace should be considered as a
permanent heating source. Permanent heating sources are typically
specified as being self-fueled. They are permanently affixed within the
unit or building, safely connected to the unit or building electrical
system, thermostatically controlled by the unit or building and
appropriate for the size of the unit. The energy source for a permanent
heating system can be electric, gas or oil. A fireplace does not meet
the self-fueled criteria. Fireplaces also do not evenly distribute
heated air throughout a property as effectively as permanently
installed heating sources and are one of the leading causes of heating
system caused fires in properties.
HUD notes that there have been instances of properties experiencing
a heating emergency if a boiler or furnaces fail. In these situations,
a temporary, back up heating source may be necessary.
Comments Regarding the Guardrail Requirement
While some commenters supported the proposed requirement, several
noted the need for additional details. Two commenters stated that the
requirement needs to have a minimum horizontal distance associated with
it within which the 30-inch vertical drop exists; one recommended that
HUD better explain the proposed requirement depending on site
conditions such as hills, slopes, etc.; otherwise, the requirement
could adversely affect the scoring while posing no threats to the
residents or general public. One commenter noted that because a 30''
drop over a 2'' run is dramatically different from a 30'' drop over a
20'' run, a better definition of conditions requiring a railing would
be helpful. The same commenter felt that the standard for handrails on
an exterior ramp are excessively vague and in need of clarification
about what constitutes a ramp versus an inclined sidewalk. One
commenter requested additional details for the design of the railing,
such as height, material, presence of balusters/spindles, etc.
One commenter stated that guardrails should be installed in elderly
or disabled facilities only, and not in family facilities. One
commenter suggested that HUD collect data to evaluate the costs
associated with the proposed guardrail requirement, as it could impose
significant financial burdens on certain properties, and HUD should
perform a comprehensive assessment of the potential impacts of this
proposal before implementation. The commenter indicated support for a
guardrail adjacent to a ``walking surface,'' but not to an area of
raised grass (e.g., single family home with a front yard where there is
a low retaining wall by the sidewalk).
HUD Response: HUD appreciates the commenters' feedback. Guardrails
were added as an affirmative requirement in Sec. 5.703, so they apply
to all housing covered by that section. In addition, all HUD-assisted
housing must comply with accessibility requirements, where applicable,
including Section 504, the Americans with Disabilities Act, and the
Fair Housing Act. The Section 504 accessibility standards, which are
the Uniform Federal Accessibility Standards or the 2010 ADA Standards
for Accessible Design as specified in the Deeming Notice (79 FR 29,671,
May 23, 2014), have certain technical requirements for guardrails
(referred to as handrails under the Federal accessibility standards)
for ramps. In general, trip and fall related injuries occur with high
frequency across multiple age groups throughout the country. These
injuries result in emergency room visits, life altering impacts and
sometimes death. Installing guardrails in higher risk walking locations
will decrease the risk for residents throughout the HUD portfolio. The
deficiency criteria for guardrails are closely aligned with housing
codes throughout the country. The deficiency criteria reflect
observable conditions documented during extensive field testing and
demonstration inspections. HUD is not including specifications for
balusters or spacing for vertical railing within the guardrail due to
variations in building code requirements over time across the HUD
property portfolio.
Comments Regarding the Interior Lighting Requirement
Several commenters were in general agreement with the proposed
requirement. Two commenters expressed general agreement with the
proposed requirement but opined that special considerations should be
allowed for historic buildings or other special circumstances related
to older buildings. One commenter agreed with the proposed requirement
and added that similar consideration should be given to adequate
illumination on interior stairs and to some extent on exterior
entrances/stairs. The commenter further opined that a standard should
be provided with respect to what constitutes proper lighting (e.g.,
lumens). One commenter stated that the rule should explicitly require a
light fixture in the bathroom.
One commenter stated that there are already HUD guidelines for
lights installed in bathrooms and kitchens, and that they are also
included in building codes. One commenter urged that if HUD moves
forward with this requirement, consideration be given to existing
properties which do not meet this standard and are not going through a
substantial rehabilitation.
HUD Response: HUD appreciates the comments regarding the safety and
well-being of residents and quality of the HUD-assisted housing stock.
Without artificial illumination, residents may not have a means of
illumination at night when natural light is not available. Lighting is
critical for safe egress during a potentially life-threatening
emergency, allows people to see unsanitary and unsafe conditions, and
thus leads to a healthier and safer living environment. Proper lighting
also removes usability barriers allowing people to fully utilize the
features of the built environment. HUD will take this feedback into
consideration as it drafts the final Standards notice, which will be
subject to further public comment.
With respect to historic properties, HUD's position is that a light
source in the kitchen and bathrooms is the minimum standard for health
and safety and has added this as an affirmative requirement in Sec.
5.703. In the rare case that a historic property designation would not
permit a permanent light fixture in the kitchen and bathroom, the PHA
or owner may apply to HUD for a waiver of this affirmative requirement.
If the unit is occupied, HUD will suspend the correction timeframe
until the waiver is reviewed.
Question for Comment #14: Risk-Based Annual Inspection Requirement
Expansion
HUD solicited comment on the proposed risk-based annual inspection
requirement expansion from 2 to 5 years and received comments both for
and against the proposal.
Several commenters supported the proposal, noting that most
properties are compliant with inspection standards and therefore do not
need such frequent inspection. Another noted generally that the
proposed 2-5-year inspection cycle would be reasonable and welcome.
Several commenters focused on the relief the proposal would provide to
high performers and low risk properties. Two commenters noted that the
proposal's flexibility will allow PHAs to shift inspection capacity and
resources
[[Page 30465]]
to properties, units and households with the greatest need, with one
adding that the inspection process is very costly for PHAs and the
expansion of the requirement from 2 to 5 years would be consistent with
the ever-decreasing funding.
Commenters specifically noted the appropriateness of the proposal
in connection with self-inspections. Two commenters, in indicating
strong support for the proposal, opined that paired with the annual
self-inspection requirement, a risk-based inspection schedule would
provide adequate oversight over the portfolio. Another commenter stated
since HUD is adding an annual self-inspection requirement for its
insured multifamily properties, project-based assisted properties, and
public housing portfolio, this change is appropriate, and that
expanding the time between risk-based physical inspections will reward
high-performing properties, alleviate administrative burdens associated
with inspections, minimize disruptions to residents and allow HUD to
focus its resources on lower scoring properties that may require more
oversight. One commenter, while supporting the proposal, urged HUD to
leverage self-inspection reporting to require onsite inspector presence
less often and recommended that HUD should maintain portfolio data
through self-inspections that can continue to insulate against
criticism of the condition of the portfolio.
Conversely, multiple commenters were opposed to the proposed risk-
based annual inspection requirement expansion from 2 to 5 years,
believing that such a change is not reflective of HUD's desire to
improve oversight over assisted properties. These commenters generally
felt that five years is too long between inspections and suggested a
maximum interval of three years. Commenters stated that 5 years, and
even 2 years, is a long time and a property may fundamentally change
within that time, citing potential adverse occurrences within a five-
year timeframe, including high turnover in the industry leading to
change in management or ownership, natural disasters, unexpected
capital needs or discovery of environmental hazards, mold caused by
water line ruptures, fire hazards, heating/cooling systems breakdowns,
pest infestations, and hazards resulting from extreme weather events.
A commenter stated that stretching REAC inspections out over a five
year, rather than three-year maximum period, would be an extremely
risky move, not warranted by any evidence that owners are suddenly more
compliant with health and safety codes than they have been in the past.
Another commenter noted that Public Housing and Multifamily housing
properties are already in extremely poor condition, another agreed and
stated that even one property with poor living conditions is one too
many and urged HUD to catchup on its backlog of inspections and focus
resources on the lowest performing properties. Another commenter noted
that while inspections on a more frequent basis are arguably costly for
housing providers, it is localities that often bear the brunt of the
cost burden when a property is not adequately maintained--both through
inspection costs and the cost to the community if residents lose their
housing or are forced to relocate due to dangerous conditions.
With respect to self-inspections, a commenter pointed out that
self-inspections necessitated by the COVID pandemic were not
appropriately diligent and that many units failed subsequent
inspections, in some cases requiring relocation of tenants, and
suggested that all units should have annual inspections for the first
five years under this system in order to properly enforce the
requirements.
A commenter suggested that for the Multifamily Section 8 or PBRA
programs, the Contract Administrators could be a second source to
``inspect'' or follow-up on the units/property during years that an
official REAC inspection is not performed and to verify POA self-
inspections and work order system efficacy, and that the combination of
POA self-inspections (annually), Contract Administration MOR
inspection/follow-up, and REAC Inspections would ensure the physical
health of the property and safe, habitable unit dwellings for the
residents, all within a 3-4 year cycle.
A commenter noted specifically that the proposed rule also allows
for changes in the inspection protocol to happen three years after
implementation of previous changes to the inspection protocol, and that
coupling five-year inspections with changes in the inspection protocol
may result in a property being inspected under different protocols,
calling into question the reliability of the assessment of the
property's physical health.
Several commenters provided mixed support for the proposal. One
commenter noted that in addition to providing a strong positive
incentive for POA performance, the prospect of less-frequent unit
inspections is likely to be attractive for many residents, for whom the
unit inspection can feel invasive and traumatic but also noted that the
criteria for determination of inspection frequency, including the
proposed risk assessment, will be crucial to ensuring this system both
protects residents and provides incentives for strong performance and
strongly urged HUD to work closely with stakeholders to develop these
criteria, including publication of draft criteria for comment in the
Federal Register. This commenter suggested that such criteria include
not only the recent performance of the subject property, but also the
POA's track record of performance at other HUD-assisted properties as
well as the timespan since the property's construction or most recent
renovation.
One commenter expressed that increasing the number of years in
between inspections should be looked at in the context of the annual
self-inspection and how burdensome that process will be as well as the
triggers for reinspection, and that the proposed rule is not clear
around the reinspection procedures, and suggested that HUD should make
clear that only an owner or manager of HUD housing may request a
reinspection and HUD may determine whether it is advisable and should
specify the grounds on which HUD will make this determination. Another
commenter expressed general support for the proposal, suggesting that
if the property is in good shape and has passed all previous health and
safety inspections the time for the next inspection should be pushed to
5 years, while cautioning that inspection intervals should always be
based on the condition of the property and how well the inspections are
conducted.
Some commenters suggested specific metrics related to proposal. One
commenter suggested that a property achieving a score in the 90s could
be inspected every 5 years, in the 80s every 4 years, in the 70s every
3 years, and in the 60s or below every 2 years. Another commenter
suggested every 5 years for a score of 96-100; every 4 years for a
score of 90-95, every 3 years for a score of 80-89, every 2 years for a
score of 70-79 and annually for a score below 70. Two commenters
suggested that 5-year inspection cycles should be reserved only for the
highest-performing properties (90-100), with the inspection frequency
increasing as the score drops by every 10 points. The commenters
further suggested that HUD maintain the ability to override this
schedule if needed, e.g., in the case of significant tenant-input to
HUD that seems to indicate a poor building quality.
A commenter noted that the risk of a major problem increases in
older properties and suggested that an option may be to require regular
inspection
[[Page 30466]]
every 1-2 years for older properties, and 2-3 years for newer
constructions and that, intermingled throughout each period, it might
be convenient to have less invasive, virtual home assessments which
have the right sensitivity to capture health and safety hazards caused
by major sudden events in the home.
One commenter distinguished between Public Housing and HCV,
recommending that for the former inspection should occur every other
year on a pass/fail basis, and for the latter that the interval between
inspections be no more than three years, and then only for landlords
with a good history of maintaining their units.
One commenter expressed that it would be best to implement an
inspection schedule based on a risk-based method. Another commenter
suggested that HUD should reform REAC's scoring system, improve tenant
participation and otherwise adopt lessons learned from NSPIRE to secure
housing improvements first, before considering the relaxation of
inspection protocols.
One commenter opined that HUD should give PHAs the discretion to
define higher and lower risk categories, i.e., a PHA should have the
ability to place in the high-risk category those property owners who
consistently take multiple attempts to pass inspections and/or have a
high number of abatements while those who consistently pass on the
first attempt can be placed in a low-risk category.
Three commenters expressed general support for the proposal but
noted the need for additional details on how it would be put into
practice. One commenter noted that under the current scheme properties
that score 90 or over are scheduled for their next inspection on the
3rd anniversary, while those scoring 80-89 are inspected on the 2nd
anniversary, and those scoring 79 or less annually. The commenter
questioned how HUD is proposing to spread the scores over a 1-5 year
period. Another commenter opined that HUD needs to provide additional
information about how they would evaluate whether PHAs qualify for a 2-
to 5-year inspection cycle, and that it would oppose an extended
inspection cycle based on requirements that include submitting all
self-inspection results and related work orders to HUD, which would
likely negate any resource savings achieved through an extended
inspection cycle. Another commenter expressed that determining the
criteria that HUD will use to decide whether a PHA qualifies for a
longer inspection time period or not must be clear and attainable, and
that if the criteria for a longer inspection time period is too
stringent then the incentive PHAs have for expanded inspection periods
would be decreased.
HUD Response: HUD appreciates the comments on the timeline for
inspections, and has gained valuable insight into this issue as a
result of the ongoing COVID-19 pandemic. REAC UPCS inspections resumed
in June of 2021 and the almost two-year break in third-party
inspections proved to be too long for some properties with performance
issues. Five years is a very long period of time to go without visiting
a property and presents a risk to the tenants and the Department--even
a high-quality property could degrade in that time. Therefore, HUD
supports maintaining the current risk-based inspection requirements
ranging from 1 to 3 years (3-2-1).
For small rural PHAs the statute requires a three-year inspection
cycle unless the PHA is Troubled. For PHAs that will continue to be
assessed under PHAS and for multi-family properties, the inspection
frequency would be either a 3-, 2-, or 1-year cycle based on the
anniversary of the last inspection. HUD will continue to evaluate
efforts to provide administrative relief to high performing properties,
including the circumstances under which self-inspections may be
accepted, through subordinate notices and additional public comment.
With respect to the suggestion that the entire portfolio of Public
Housing and Multifamily assisted housing be inspected annually for the
first five years under NSPIRE, HUD does not consider it feasible to do
so with current resources. Because HUD is declining to adopt an
extended timeline of two to five years for physical inspections, there
is no need to provide information about how properties will be
assessed, the process for implementation, and what information will be
considered to allow less frequent inspections of up to five years. HUD
notes that small rural PHAs that are not troubled under 902.105 will be
inspected every three years.
HUD appreciates the feedback regarding self-inspections as it
relates to risk-based annual inspections. HUD's risk-based approach
seeks to balance administrative burden on owners and management and HUD
will continue to review the appropriateness of self-inspection
processes for its public housing and project-based portfolios in
context with inspection timing. For the requirement for self-inspection
reporting at Sec. 5.705, HUD has limited the collection of these
reports to those properties that receive a score of less than 60. This
aligns with the current process for Multifamily Housing programs. HUD
will continue to rely on the results of independent, HUD-funded
inspectors for scoring and to determine inspection frequency.
Question for Comment #15: Tenant Involvement
HUD solicited comments on how tenants could be involved in
identifying poor performing properties.
Commenters asked HUD to provide more context around these ideas and
how HUD would use these ideas so that the industry can respond in a
more productive way. Some commenters opposed resident involvement in
the inspection process, noting that tenant reviews, like consumer
reviews, could be biased and unreliable and that disgruntled tenants
may unduly influence inspection results, analogizing to
disproportionate numbers of 1- or 5-star reviews for restaurants and
products online. Commenters stated that tenant involvement would
complicate the tenant-landlord relationship. For example, a tenant may
give an unearned good review to gain favor with a landlord, or urge
residents to participate in a survey prior to inspection could obligate
property staff to please residents to get a positive review.
Several commenters opined that tenant involvement in the inspection
process is simply not needed, noting that inspectors are the best, most
reliable source for inspecting and reporting on the property, that
residents have always had the ability to notify HUD when their work
orders or repairs are not completed in a timely manner, that owners are
already required to inform residents of their rights to notify HUD of
any such concerns, and that tenants are already adequately protected by
local landlord tenant laws, by the REAC process generally and by the
residents' relationship with the HUD Account Executive. As an
alternative to an added review program, commenters urged that HUD make
sure that the reporting systems work well to inform the appropriate HUD
staff of conditions and to ensure that these resources are fully
staffed and communicated to residents through multiple channels.
Another alternative offered was that HUD explore ways to facilitate and
clarify this complaint/enforcement process through the NSPIRE
demonstration and intervene to enforce its physical standards and
compel owner/agents (OAs) to resolve identified issues.
Several commenters focused on the appropriate weight that should be
assigned to tenant input, suggesting that resident reviews should not
be given so
[[Page 30467]]
much weight as to disrupt the value of the random selection of units
under the current scheme; that creating a separate inspection agenda
that does not contribute to the final inspection result would create
confusion; and that the results of tenant surveys should not increase
or alter sample size, or affect the frequency of inspections.
Commenters cautioned that an inspection not based on a statistical
random sample is not a legitimate representation of the property's
physical condition. A commenter noted that residents would only want
units inspected that they feel illustrate deficiencies, another noted
that pre-identifying units to be inspected would allow prior targeting
of those units either by OAs or residents to influence scoring.
Two commenters urged HUD not to turn the REAC inspection into a
complaint-based inspection scheme and suggested investigation of tenant
complaints should remain outside the purview of the REAC inspector.
HUD received a large number of comments with respect to the use of
tenant surveys, with several commenters suggesting that a proper survey
to all tenants could yield higher-than-average concerns about specific
deficiencies which HUD could treat as a factor among others in
determining inspection frequency or intensity.
Commenters advocating the use of surveys sounded several common
themes: that HUD or its contract administrators administer the tenant
survey to ensure confidence in the survey's independence; that tenant-
based questions should not be subjective and should include clear
definitions for a rating system with significant training and
administrative system to avoid subjectivity; that surveys solicit
specific information so responses would be less subjective; that
surveys include random, anonymous questionnaires to residents; and that
the survey be accessible to persons with disabilities and include a
paper option.
Some commenters suggested a single, targeted question or short
series of questions asked by inspectors to some residents during
inspection, while another suggested an annual mailing to residents with
a request to rate specific performance issues. A commenter suggested a
simple, accessible tenant inspection form uploaded in a similar manner
to owner self-inspection and on the same frequency/timeline. A
commenter supported REAC's initial protocols (dropped in early 2000s),
which required a Tenant Survey, by mail, of a sample of REAC-inspected
properties; however, another commenter opined that this resident
questionnaire was not representative of the property.
Commenters recommended tenant surveys include questions about
health and safety generally, water leaks, mold, insects such as
bedbugs, rodents, lead-based paint, smoke detectors, carbon monoxide
detectors, and other environmental hazards, management performance and
treatment of tenants, the right to organize, and the existence of a
working stove. A commenter suggested anonymized survey data be provided
to properties to permit responses with respect to identified issues.
Commenters suggested that tenant survey data (together with REAC
scores) could be used by HUD to evaluate the accuracy of self-
inspections. A commenter suggested that survey information that
identifies a life-threatening condition(s) should trigger an
inspection.
Commenters also suggested that tenants be allowed to recommend
their unit for inspection. Commenters recommended adding five units to
REAC's random selection if requested by a tenant organization. A
commenter suggested that residents should be allowed to recommend homes
for inspection as they are best positioned to direct HUD to conditions
on the property, another opined that allowing tenants to designate
substandard units for inspection will help offset the ``point loss
cap'' bias built into the REAC system. A commenter suggested that an
additional procedure to account for extra units inspected per resident
request could be developed; one commenter suggested a resident council
could work to ensure adding a more representative group of individuals'
units to the inspection sample. A commenter supported the inclusion of
units/issues subject to such enforcement action within the sample for
the next REAC/NSPIRE inspection, to ensure ongoing compliance.
HUD Response: HUD appreciates the comments related to tenant
involvement in the NSPIRE inspection process. HUD regularly hears from
groups representing tenants about how residents can be more engaged in
the inspection process and sought comment through the proposed rule as
a way of advancing this conversation and agrees that HUD should
consider working through resident councils and tenant organizations,
for example. HUD's process will be addressed further in a subordinate
notice specifically on tenant engagement.
HUD does not intend for resident feedback to supersede trained
inspectors, nor does it intend to use resident ratings to score
properties. HUD's intent in proposing a rating of 1 (poor) through 5
(excellent) was to provide a mechanism for residents to identify
additional units for inspection; however, HUD does not intend for these
units to comprise part of the property score. HUD can direct owners and
PHAs to repair identified deficiencies even if those deficiencies are
not scored, because the requirement for housing to be maintained in
accordance with 5.703 always applies. Based on public comment and other
analysis, HUD will further evaluate scaled 1 to 5 responses as
suggested in the question and other means of collecting tenant
feedback. This aligns with comments about eliminating as much
subjectivity as possible. HUD will also continue to explore tenant
participation in an accessible manner to align feedback with potential
deficiencies. The NSPIRE Scoring notice will provide more information
about the sample that will be considered for the score. HUD agrees that
professional inspectors are the most reliable source for assessing
property conditions but believes tenant involvement in NSPIRE and
feedback about the condition of properties is also very meaningful and
should be taken seriously. HUD will continue to evaluate how the NSPIRE
inspection process design best results in independent assessments of
property condition while balancing a desire for more tenant feedback
about property condition. HUD does not consider these two objectives
mutually exclusive.
HUD takes into account the potential administrative burden on both
the owners and the residents and plans to add additional units to the
NSPIRE inspection if they are requested by the residents. Additional
details will be provided in the Administrative Notice. With respect to
tenant-selected units in the sample biasing an inspector, HUD will
consider ways to protect anonymity of personally identifying factors,
such as unit address and number. HUD will also consider the suggestion
that an inspection be triggered or when a survey identifies the
existence of a life-threatening condition.
HUD agrees with the comments regarding existing channels for
tenants to report property conditions and engage with OAs and HUD
Account Executives. HUD will look at ways to strengthen the existing
operational protocols while exploring ways to expand tenant engagement
in the NSPIRE process. Residents can also contact the State HUD field
office.
HUD appreciates the feedback suggesting strengthening existing
procedures before adding tenant participation into the unit selection
[[Page 30468]]
process. HUD agrees that more robust communication about REAC processes
and final scores could improve overall conditions of HUD-assisted
properties. HUD also agrees with the sentiment of improving REAC
through NSPIRE--and the demonstration program--to compel OAs to resolve
identified issues. HUD believes that NSPIRE's focus on health and
safety of the residents will lead to better living conditions and
outcomes. NSPIRE procedures for inspections, scoring, and collection of
resident-nominated units will be in the NSPIRE Administrative notice.
With respect to comments about tenant-selected units influencing
the overall inspection outcome and potential to turn into an
alternative complaint process, HUD does not intend for tenant feedback
to HUD to supersede existing work order and tenant complaint processes.
HUD sees tenant involvement in the inspection process as an additional
means to improve the overall quality of HUD-assisted housing by
bringing the resident's voice to the table. HUD sees this as useful
where random sampling falls short--e.g., it's possible that a random
sample could completely miss units with infestation, and where pests
are active only at night. Tenant involvement also provides an
opportunity for HUD to ensure that known deficiencies raised by tenants
are corrected. HUD will take into consideration the suggestions to
engage Tenant Organizations, resident councils and other means to allow
residents to select certain units to be included in the inspection
sample, but these units will not impact the overall score, unless they
were already randomly selected as part of the REAC inspection sample.
HUD considered the suggestion that tenants to designate certain units
for the inspection could help offset the ``point loss cap'' for system-
based scoring and ensure accurate deductions for deficiencies, but
determined that resident-selected units would not be scored unless
randomly selected as part of the inspection performed by HUD.
Additionally, as provided in the proposed Scoring notice, 88 FR 18268
(Mar. 28, 2023), HUD is proposing to eliminate point-loss caps allowed
under UPCS.
Other Suggestions
HUD received a number of additional comments regarding tenant
involvement that relate to current REAC processes. Commenters
recommended tenants be notified about REAC matters and results and
given the opportunity to comment and that HUD remove the current 60-day
limitation on the availability to tenants of REAC Reports, scores, and
related correspondence. Commenters also suggested REAC inspectors
should access local code reports in localities if available online, as
well as summary work order reports that many management companies
maintain to provide a REAC inspector with a quick overview of how many
repairs were reported, how long it took to complete them, and tenant
satisfaction. Commenters requested HUD require a meeting between a REAC
inspector and any legitimate tenant organization before starting an
inspection and allow a representative of any legitimate tenant
organization to accompany an inspector if a tenant organization
requests, but not into an individual unit unless invited by a tenant.
Commenters also suggested that tenants should have the opportunity to
trigger a REAC inspection when at least 25 percent of the residents, or
the local government, request one.
Other comments related to tenant involvement include a suggestion
that HUD develop a separate and distinct program, with allocated
funding and resources, to engage residents in evaluating their housing
experience and the quality of their housing; that HUD require owners
and agents to make tenants aware of reporting options, for example by
requiring the phone number(s) to be posted or distributed with lease
documents; and that HUD support tenants' right to organize and support
building tenant association capacity by making $10 million annually in
Section 514 funding to local nonprofit tenant assistance organizations.
In connection with the last suggestion, commenters noted that Congress
has made available funding through Section 514 of MAHRAA to provide for
tenant organizing and capacity buil
[…truncated; see source link]Indexed from Federal Register on May 11, 2023.
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