Notice2024-06877
Waiver for a Community Development Block Grant Disaster Recovery (CDBG-DR) Grantee
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
April 2, 2024
Issuing agencies
Housing and Urban Development Department
Abstract
This notice governs Community Development Block Grant disaster recovery (CDBG-DR) funds allocated to the Commonwealth of Puerto Rico pursuant to the Supplemental Appropriations for Disaster Relief Requirements Act, 2017, and the Further Additional Supplemental Appropriations for Disaster Relief Requirements Act, 2018, for major disasters occurring in 2017. In response to a request by the Commonwealth of Puerto Rico, this notice provides a waiver to use CDBG- DR funds to satisfy the non-federal cost share for Federal Emergency Management Agency (FEMA) Public Assistance (PA) funded reconstruction and rehabilitation of houses of worship for grants provided to the Commonwealth.
Full Text
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<title>Federal Register, Volume 89 Issue 64 (Tuesday, April 2, 2024)</title>
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[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Notices]
[Pages 22736-22738]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06877]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-6444-N-01]
Waiver for a Community Development Block Grant Disaster Recovery
(CDBG-DR) Grantee
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Notice.
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SUMMARY: This notice governs Community Development Block Grant disaster
recovery (CDBG-DR) funds allocated to the Commonwealth of Puerto Rico
pursuant to the Supplemental Appropriations for Disaster Relief
Requirements Act, 2017, and the Further Additional Supplemental
Appropriations for Disaster Relief Requirements Act, 2018, for major
disasters occurring in 2017. In response to a request by the
Commonwealth of Puerto Rico, this notice provides a waiver to use CDBG-
DR funds to satisfy the non-federal cost share for Federal Emergency
Management Agency (FEMA) Public Assistance (PA) funded reconstruction
and rehabilitation of houses of worship for grants provided to the
Commonwealth.
DATES: Applicability Date: April 8, 2024.
FOR FURTHER INFORMATION CONTACT: Tennille Parker, Director, Office of
Disaster Recovery, U.S. Department of Housing and Urban Development,
451 7th Street SW, Room 7282, Washington, DC 20410, telephone number
202-708-3587 (this is not a toll-free number). HUD welcomes and is
prepared to receive calls from individuals who are deaf or hard of
hearing, as well as from 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>. Email inquiries may be sent to
<a href="/cdn-cgi/l/email-protection#65010c1604161100173a1700060a1300171c250d10014b020a13"><span class="__cf_email__" data-cfemail="c6a2afb5a7b5b2a3b499b4a3a5a9b0a3b4bf86aeb3a2e8a1a9b0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority to Grant Waivers
II. Pub. L. 115-56 and 115-123 Waiver
III. Finding of No Significant Impact (FONSI)
I. Authority to Grant Waivers
The Supplemental Appropriations for Disaster Relief Requirements
Act, 2017 (Division B, Pub. L. 115-56), approved September 8, 2017, and
the Further Additional Supplemental Appropriations for Disaster Relief
Requirements Act, 2018 (Division B, Subdivision 1, Pub. L. 115-123),
approved February 9, 2018, authorize the Secretary to waive, or specify
alternative requirements for, any provision of any statute or
regulation that the Secretary administers in connection with the
obligation by the Secretary, or use by the recipient, of grant funds,
except for requirements related to fair housing, nondiscrimination,
labor standards, and the environment. HUD may also exercise its
regulatory waiver authority under 24 CFR 5.110, 91.600, and 570.5.
The waiver authorized in this notice is based upon a determination
by the Secretary that good cause exists and that the waiver is not
inconsistent with the overall purposes of title I of the Housing and
Community Development Act of 1974 (42 U.S.C. 5301 et seq.) (HCDA). The
good cause for the waiver is summarized in this notice.
II. Pub. L. 115-56 and 115-123 Waiver
Waiver to use CDBG-DR funds to satisfy the non-federal cost share
for FEMA PA-funded reconstruction and rehabilitation of houses of
worship (Commonwealth of Puerto Rico only).
The Department has awarded CDBG-DR funds to the Commonwealth of
Puerto Rico (``the Commonwealth'') under Public Laws 115-56 and 115-123
to assist in the long-term recovery from the 2017 disasters, Hurricanes
Irma and Maria. This notice waives requirements for CDBG-DR funds
awarded to the Commonwealth under these two Public Laws.
Many buildings in the Commonwealth, including houses of worship,
suffered extensive damage in the wake of the two major hurricanes that
occurred within the same month of September 2017. In the aftermath of
the two hurricanes and other disasters, faith-based organizations
(FBOs) have used churches and other principal places of worship to
assist residents. Especially in smaller, rural communities of the
Commonwealth, houses of worship often serve as shelters during and
after disasters and as gathering places to obtain post-disaster
assistance and information.
In its current, amended action plan (Amendment 13 to the CDBG-DR
action plan, effective October 9, 2023), the Commonwealth's Non-Federal
Match Program (NFMP) uses CDBG-DR funds to meet the non-federal share
obligations of other, federal disaster-relief assistance provided to
the Commonwealth that is used for a variety of activities authorized
under title I of the HCDA, including building reconstruction and
rehabilitation costs authorized under 42 U.S.C. 5305(a)(4). For
example, FEMA has approved the use of its PA funds to pay the federal
cost share for the rehabilitation or reconstruction of disaster-damaged
houses of worship, including sanctuaries, chapels, or other rooms that
FBOs use as their principal place of worship. The Commonwealth seeks to
use CDBG-DR funds through the NFMP, pursuant to 42 U.S.C. 5305(a)(4)
and 5305(a)(9), to reimburse FBOs for the non-federal cost share
associated with FEMA PA-funded reconstruction and rehabilitation of
houses of worship damaged or destroyed by Hurricanes Irma and Maria.
The regulation at 24 CFR 5.109 applies to CDBG-DR funds, and without a
waiver, sections of this regulation either prohibit the use of CDBG-DR
funds for these activities or impose costly and time-consuming
accounting constraints that prevent the Commonwealth from using its
CDBG-DR funds for these activities.
The regulation at 24 CFR 5.109(j) prohibits the use of direct
federal financial assistance for the acquisition, construction, or
rehabilitation of sanctuaries, chapels, or other rooms that a HUD-
funded FBO uses as its principal place of worship. Where a structure is
used for both eligible and explicitly
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religious activities (including activities that involve overt religious
content such as worship, religious instruction, or proselytization), 24
CFR 5.109(j) also provides that direct federal financial assistance may
not exceed the cost of the share of acquisition, construction, or
rehabilitation attributable to eligible activities in accordance with
the cost accounting requirements applicable to the HUD program or
activity. The regulations at 24 CFR 5.109(e) state that if an
organization engages in explicitly religious activities, the explicitly
religious activities must be offered separately, in time or location,
from the programs or activities supported by direct Federal financial
assistance, and participation must be voluntary for the beneficiaries
of the programs or activities that receive direct federal financial
assistance. Without a waiver, 24 CFR 5.109(e) and (j) prohibit the
Commonwealth from using CDBG-DR funds through the NFMP for
reimbursement of the non-federal cost share either outright or because
of burdensome and time-consuming cost accounting requirements.
The Department may waive 24 CFR 5.109(e) and (j) only upon a
determination of good cause. The Department would not be able to find
good cause if it concluded the Commonwealth's proposed use of funds for
NFMP activities will likely violate the Establishment Clause. Here, the
Department has concluded that the Commonwealth's proposed use of CDBG-
DR funds would likely be constitutional and found good cause because
the Commonwealth will use neutral, secular criteria in making funding
decisions under the NFMP, including in the Commonwealth's assessments
of whether NFMP activities meet a national objective. The Department's
finding of good cause is additionally based on the fact that granting a
waiver to allow CDBG-DR funds to be used as the non-federal match for
projects that are otherwise eligible under FEMA's PA Program, will
permit the grantee to align its recovery with the way in which FEMA PA
funds are distributed and decrease the grantee's administrative burden.
The Department's good-cause determination is based on the specific
combination of facts and circumstances presented here, and similar
waivers may not be permissible in other contexts.
The Secretary's determination of good cause is based on the
Department's review of the Commonwealth's waiver requests, the
descriptions of the NFMP in the Commonwealth's current CDBG-DR action
plan, the Commonwealth's program guidelines for the NFMP, including its
criteria for making funding decisions under the NFMP, and other
correspondence and communication with the Commonwealth (collectively
referred to as the ``waiver requests and related correspondence''). The
Commonwealth's waiver requests and related correspondence have provided
HUD with a reasonable basis for concluding that the Commonwealth has
adopted relevant, neutral, secular criteria to make its funding
decisions because it has demonstrated that its funding decisions are
made on the same terms and conditions, without regard to religion, and
only for eligible entities that qualify under the NFMP.
The Commonwealth's program guidelines shared with HUD indicate that
it will make its eligibility determinations exclusively based on
neutral and secular criteria including the availability of funds, the
date of execution of a subrecipient's agreement, and whether a proposed
project meets CDBG-DR requirements related to activity eligibility and
one or more of the three national objectives, namely, to benefit low-
and moderate-income families, aid in the prevention or elimination of
slums or blight, and/or to meet community development needs having a
particular urgency. Religion is not relevant to the Commonwealth's
assessment of activity eligibility under 42 U.S.C. 5305(a)(4) and
5305(a)(9) for payment of the non-federal cost share of the
reconstruction and rehabilitation of houses of worship or any other
building. Under these program guidelines, the Commonwealth determines
whether a proposed project will meet a national objective before
approving funds under the NFMP as part of its eligibility
determinations and has indicated that it intends to apply either the
urgent need or low- and moderate-income area benefit (LMA) national
objectives for projects funded through its NFMP. Furthermore, the
Commonwealth's waiver requests and related correspondence also
demonstrate that it will use neutral, secular criteria for purposes of
assessing compliance under these national objectives.
The urgent need national objective criteria (i.e., activities that
meet a community development need that has a particular urgency) that
is applicable to the Commonwealth's CDBG-DR funds is established
through a waiver and alternative requirement in paragraph VI.A.12. of
the Federal Register notice published on February 9, 2018 (83 FR 5844)
and does not take religion into consideration. Under the waiver and
alternative requirement, assisted houses of worship will be in
compliance with the urgent need national objective if the assisted
structures fall within the type, scale, and location of the disaster-
related impacts identified to be addressed through the NFMP in the
Commonwealth's action plan. Because the urgent need national objective
criteria is a neutral, secular requirement that does not allow for the
exercise of discretion with regard to religion, a determination by the
Commonwealth that an activity is consistent with the urgent need waiver
and alternative requirement is one that uses neutral, secular criteria.
The requirements for the LMA national objective are found at 24 CFR
570.483(b)(1)(i), and activities satisfy this requirement if an
activity's benefits are available to all the residents in a particular
area, where at least 51 percent of the residents are low- and moderate-
income persons. The Commonwealth's waiver requests and related
correspondence with HUD identify neutral, secular reasons for the
Commonwealth to determine that its use of CDBG-DR funds to reimburse
the costs of reconstructing or rehabilitating houses of worship damaged
by Hurricanes Irma and Maria will meet the LMA national objective.
Specifically, the Commonwealth has indicated that FBOs used houses of
worship in many distressed communities in the Commonwealth to provide
childcare, foodbanks, or shelter for the homeless; FBOs in the
Commonwealth served as ``first responders'' in low- to moderate-income
communities where natural disasters occurred, and shrines, chapels, and
other rooms that serve as primary places of worship were ``used for
eligible activities outside of hours of worship''; and houses of
worship in Puerto Rico ``are almost always found in the center of
town'' and are of great importance to, especially, smaller communities,
in part because the structures have ``served as shelters during and
after . . . hurricanes'' and have been ``gathering places to obtain
post-disaster assistance and information.'' These representations
provide a reasonable basis for HUD's conclusion that the Commonwealth
will use neutral, secular criteria in assessing whether funded
activities would meet the LMA national objective requirement.
Because HUD has concluded that the Commonwealth has adopted
neutral, secular criteria to make its funding decisions under the NFMP,
HUD has found good cause for the requested waiver, and waives 24 CFR
5.109(e) and (j) only to allow the Commonwealth to use CDBG-DR funds to
reimburse FBOs for the non-federal cost share associated with FEMA PA-
funded reconstruction
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and rehabilitation of houses of worship damaged or destroyed by
Hurricanes Irma and Maria through its NFMP pursuant to 42 U.S.C.
5305(a)(4) and 5305(a)(9). This waiver is conditioned on the
Commonwealth's compliance with the Establishment Clause, and is only
available so long as the Commonwealth uses neutral and secular criteria
in its funding decisions under the NFMP, including in its assessments
of whether activities funded through the NFMP meet a national
objective.
III. Finding of No Significant Impact
A Finding of No Significant Impact (FONSI) with respect to the
environment has been made in accordance with HUD regulations at 24 CFR
part 50, which implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is
available online on HUD's CDBG-DR website at <a href="https://www.hud.gov/program_offices/comm_planning/cdbg-dr">https://www.hud.gov/program_offices/comm_planning/cdbg-dr</a> and for public inspection between
8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of
General Counsel, Department of Housing and Urban Development, 451 7th
Street SW, Room 10276, Washington, DC 20410-0500. Due to security
measures at the HUD Headquarters building, an advance appointment to
review the docket file must be scheduled by calling the Regulations
Division at 202-708-3055 (this is not a toll-free number). 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>.
Adrianne Todman,
Acting Secretary.
[FR Doc. 2024-06877 Filed 4-1-24; 8:45 am]
BILLING CODE 4210-67-P
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