PART 761—DRUG ELIMINATION PROGRAMS Authority: 42 U.S.C. 3535(d) and 11901 et seq. Editorial Note: Nomenclature changes to part 761 appear at 64 FR 49917, Sept. 14, 1999. Source: 61 FR 13987, Mar. 28, 1996, unless otherwise noted. Subpart A—General § 761.1 Purpose and scope. This part 761 contains the regulatory requirements for the Assisted Housing Drug Elimination Program (AHDEP) and the Public Housing Drug Elimination Program (PHDEP). The purposes of these programs are to: (a) Eliminate drug-related and violent crime and problems associated with it in and around the premises of Federally assisted low-income housing, and public and Indian housing developments; (b) Encourage owners of Federally assisted low-income housing, public housing agencies and Indian housing authorities (collectively referred to as HAs), and resident management corporations to develop a plan that includes initiatives that can be sustained over a period of several years for addressing drug-related and violent crime and problems associated with it in and around the premises of housing proposed for funding under this part; and (c) Make available Federal grants to help owners of Federally assisted low-income housing, HAs, and RMCs carry out their plans. [61 FR 13987, Mar. 28, 1996, as amended at 64 FR 49917, Sept. 14, 1999] § 761.5 Public housing; encouragement of resident participation. For the purposes of the Public Housing Drug Elimination Program, the elimination of drug-related and violent crime within public housing developments requires the active involvement and commitment of public housing residents and their organizations. To enhance the ability of PHAs to combat drug-related and violent crime within their developments, Resident Councils (RCs), Resident Management Corporations (RMCs), and Resident Organizations (ROs) will be permitted to undertake management functions specified in this part, notwithstanding the otherwise applicable requirements of part 964 of this title. [64 FR 49917, Sept. 14, 1999] § 761.10 Definitions. The definitions Department, HUD, Public Housing Agency (PHA) Controlled substance Drug intervention Drug prevention Drug-related and violent crime Drug treatment Federally assisted low-income housing, assisted housing, Governmental jurisdiction In and around Indian tribe Local law enforcement agency Problems associated with drug-related and violent crime Program income Recipient of assistance under the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA recipient) recipient et seq. Resident council (RC), (1) It must be representative of the residents it purports to represent; (2) It may represent residents in more than one development or in all of the developments of a HA, but it must fairly represent residents from each development that it represents; (3) It must adopt written procedures providing for the election of specific officers on a regular basis (but at least once every three years); and (4) It must have a democratically elected governing board. The voting membership of the board must consist of residents of the development or developments that the resident organization or resident council represents. Resident Management Corporation (RMC), State note Unit of general local government [61 FR 13987, Mar. 28, 1996, as amended at 64 FR 49918, Sept. 14, 1999] Subpart B—Grant Funding § 761.13 Amount of funding. (a) PHDEP formula funding Funding share formula Per unit amount. (ii) Calculation of number of units. (2) Consortium funding. (3) Adjustments to funding. (i) An applicant must submit a PHDEP plan that meets the requirements of § 761.21, as required by § 761.15(a)(5), each FFY year to receive that FFY's funding. An applicant that does not submit a PHDEP plan for a FFY as required will not receive that FFY's funding. (ii) Ineligible activities, described at § 761.17(b), are not eligible for funding. Activities proposed for funding in an applicant's PHDEP plan that are determined to be ineligible will not be funded, and the applicant's funding for that FFY may be reduced accordingly. (iii) In accordance with § 761.15(a)(6), an applicant that does not meet the performance requirements of § 761.23 will be subject to the sanctions listed in § 761.30(f)(2). (iv) Both the amount of and continuing eligibility for funding is subject to the sanctions in § 761.30(f). (v) Any amounts that become available because of adjustments to an applicant's funding will be distributed to every other applicant that qualifies for funding in accordance with paragraphs (a)(1) and (a)(2) of this section. (b) AHDEP funding. Federal Register. [64 FR 49918, Sept. 14, 1999] § 761.15 Qualifying for funding. (a) Qualifications for PHDEP funding Eligible applicants. (i) A PHA; (ii) An RMC; and (iii) A consortium of PHAs. (2) Preference PHAs. (3) Needs qualification for funding. (i) The eligible applicant must be in the top 50% of the unit-weighted distribution of an index of a rolling average rate of violent crimes of the community, as computed for each Federal Fiscal Year (FFY). The crime rate used in this needs determination formula is the rate, from the most recent years feasible, of FBI violent crimes per 10,000 residents of the community (or communities). If this information is not available for a particular applicant's community, HUD will use the average of data from recipients of a comparable State and size category of PHA (less than 500 units, 500 to 1249 units, and more than 1250 units). If fewer than five PHAs have data for a given size category within a State, then the average of PHAs for a given size category within the census region will be used; or (ii) The eligible applicant must have qualified for PHDEP funding, by receiving an application score of 70 or more points under any one of the PHDEP NOFAs for FFY 1996, FFY 1997 or FFY 1998, but not have received an award because of the unavailability of funds. (4) Consortium of eligible applicants. (5) PHDEP plan requirement. PHAs. (ii) To receive PHDEP funding, a PHA that qualifies to receive PHDEP funding and is operating under an executed Moving To Work (MTW) agreement with HUD must submit a PHDEP plan that meets the requirements of § 761.21 with its required MTW plan for each Federal Fiscal Year for which it qualifies for funding. (iii) RMCs. (iv) Consortia. (6) An otherwise qualified recipient PHA, RMC or consortium may not be funded if HUD determines, on a case-by-case basis, that it does not meet the performance requirements of § 761.23. (b) Qualifications for AHDEP funding. Federally assisted low-income housing Federal Register [64 FR 49918, Sept. 14, 1999] § 761.17 Eligible and ineligible activities for funding. (a) Eligible activities. (1) Employment of security personnel, (i) Security guard personnel. (B) The applicant, the provider (contractor) of the security personnel and, only if the local law enforcement agency is receiving any PHDEP funds from the applicant, the local law enforcement agency, are required, as a part of the security personnel contract, to enter into and execute a written agreement that describes the following: ( 1 ( 2 (ii) Employment of HA police. (B) Additional HA police services to be funded under this program must be over and above those that the existing HA police, if any, provides, and the tribal, State or local government is contractually obligated to provide under its Cooperation Agreement with the applying HA (as required by the HA's Annual Contributions Contract). An applicant seeking funding for this activity must first establish a baseline by describing the current level of services provided by both the local law enforcement agency and the HA police, if any (in terms of the kinds of services provided, the number of officers and equipment and the actual percent of their time assigned to the developments proposed for funding), and then demonstrate that the funded activity will represent an increase over this baseline. (C) If the local law enforcement agency is receiving any PHDEP funds from the applicant, the applicant and the local law enforcement agency are required to enter into and execute a written agreement that describes the following: ( 1 ( 2 (2) Reimbursement of local law enforcement agencies for additional security and protective services, (i) Additional security and protective services to be funded must be over and above those that the tribal, State, or local government is contractually obligated to provide under its Cooperation Agreement with the applying HA (as required by the HA's Annual Contributions Contract). An application seeking funding for this activity must first establish a baseline by describing the current level of services (in terms of the kinds of services provided, the number of officers and equipment, and the actual percent of their time assigned to the developments proposed for funding) and then demonstrate that the funded activity will represent an increase over this baseline. (ii) Communications and security equipment to improve the collection, analysis, and use of information about drug-related or violent criminal activities in a public housing community may be eligible items if used exclusively in connection with the establishment of a law enforcement substation on the funded premises or scattered site developments of the applicant. Funds for activities under this section may not be drawn until the grantee has executed a contract for the additional law enforcement services. (3) Physical improvements to enhance security, (i) An activity that is funded under any other HUD program shall not also be funded by this program. (ii) Funding is not permitted for physical improvements that involve the demolition of any units in a development. (iii) Funding is not permitted for any physical improvements that would result in the displacement of persons. (iv) Funding is not permitted for the acquisition of real property. (4) Employment of investigating individuals, (i) If one or more investigators are to be employed for a service that is also provided by a local law enforcement agency, the applicant must undertake and retain a cost analysis that demonstrates the employment of investigators is more cost efficient than obtaining the service from the local law enforcement agency. (ii) The applicant, the investigator(s) and, only if the local law enforcement agency is receiving any PHDEP funds from the applicant, the local law enforcement agency, are required, before any investigators are employed, to enter into and execute a written agreement that describes the following: (A) The nature of the activities to be performed by the investigators, their scope of authority, and how they will coordinate their activities with the local law enforcement agency; (B) The types of activities that the investigators are expressly prohibited from undertaking. (5) Voluntary tenant patrols, (i) The provision of training, communications equipment, and other related equipment (including uniforms), for use by voluntary tenant patrols acting in cooperation with officials of local law enforcement agencies is permitted. Grantees are required to obtain liability insurance to protect themselves and the members of the voluntary tenant patrol against potential liability for the activities of the patrol. The cost of this insurance will be considered an eligible program expense. (ii) The applicant, the members of the tenant patrol and, only if the local law enforcement agency is receiving any PHDEP funds from the applicant, the local law enforcement agency, are required, before putting the tenant patrol into effect, to enter into and execute a written agreement that describes the following: (A) The nature of the activities to be performed by the tenant patrol, the patrol's scope of authority, and how the patrol will coordinate its activities with the local law enforcement agency; (B) The types of activities that a tenant patrol is expressly prohibited from undertaking, to include but not limited to, the carrying or use of firearms or other weapons, nightsticks, clubs, handcuffs, or mace in the course of their duties under this program; (C) The type of initial tenant patrol training and continuing training the members receive from the local law enforcement agency (training by the local law enforcement agency is required before putting the tenant patrol into effect). (iii) Tenant patrol members must be advised that they may be subject to individual or collective liability for any actions undertaken outside the scope of their authority and that such acts are not covered under a HA's or RMC's liability insurance. (iv) Grant funds may not be used for any type of financial compensation for voluntary tenant patrol participants. However, the use of program funds for a grant coordinator for volunteer tenant foot patrols is permitted. (6) Drug prevention, intervention, and treatment programs, (7) Funding resident management corporations (RMCs), resident councils (RCs), and resident organizations (ROs). (8) Youth sports. (9) Eliminating drug-related and violent crime in PHA-owned housing, (b) Ineligible activities. (1) For activities not included under paragraph (a) of this section; (2) For costs incurred before the effective date of the grant agreement; (3) For the costs related to screening or evicting residents for drug-related crime. However, investigators funded under this program may participate in judicial and administrative proceedings; (4) For previously funded activities determined by HUD on a case-by-case basis to be unworthy of continuation. [64 FR 49919, Sept. 14, 1999] Subpart C—Application and Selection § 761.20 Selection requirements. (a) PHDEP selection. (b) AHDEP selection. Federal Register [64 FR 49920, Sept. 14, 1999] § 761.21 Plan requirement. (a) General requirement. Federal Register (b) Additional requirements for consortia. [64 FR 49920, Sept. 14, 1999] § 761.23 Grantee performance requirements. (a) Basic grantee requirements Compliance with civil rights requirements. (2) Adherence to the grant agreement. (3) Compliance with “baseline” funding requirement. (4) Partnerships. (5) MTCS reporting. (b) Planning and reporting requirements Planning consistency. (2) Demonstration of coordination with other law enforcement efforts. (3) Compliance with reporting requirements. (4) Reporting on drug-related and violent crime. (c) Funding and evaluation requirements Timely obligation and expenditure of grant funds. (2) Operational monitoring and evaluation system. (3) Reduction of violent crime and drug use. (d) Other requirements. (e) Sanctions. [64 FR 49921, Sept. 14, 1999] § 761.25 Resident comments on grant application. The applicant must provide the residents of developments proposed for funding under this part 761, as well as any RMCs, RCs, or ROs that represent those residents (including any HA-wide RMC, RC, or RO), if applicable, with a reasonable opportunity to comment on its application for funding under these programs. The applicant must give these comments careful consideration in developing its plan and application, as well as in the implementation of funded programs. Grantees must maintain copies of all written comments submitted for three years. Subpart D—Grant Administration § 761.30 Grant administration. (a) General. (b) Grant term extensions Grant term. (2) Extension. (3) Receipt. (4) Term. (5) Extension criteria. (i) Financial status reports. (ii) Grant agreement special conditions. (iii) Justification. (6) HUD action. (c) Duplication of funds. (d) Insurance. (e) Failure to implement program. (f) Sanctions. (i) Is not complying with the requirements of this part 761, or of other applicable Federal law; (ii) Fails to make satisfactory progress toward its drug elimination goals, as specified in its plan and as reflected in its performance and financial status reports; (iii) Does not establish procedures that will minimize the time elapsing between drawdowns and disbursements; (iv) Does not adhere to grant agreement requirements or special conditions; (v) Proposes substantial plan changes to the extent that, if originally submitted, the applications would not have been selected for funding; (vi) Engages in the improper award or administration of grant subcontracts; (vii) Does not submit reports; or (viii) Files a false certification. (2) HUD may impose the following sanctions: (i) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee; (ii) Disallow all or part of the cost of the activity or action not in compliance; (iii) Wholly or partly suspend or terminate the current award for the grantee's or subgrantee's program; (iv) Require that some or all of the grant amounts be remitted to HUD; (v) Condition a future grant and elect not to provide future grant funds to the grantee until appropriate actions are taken to ensure compliance; (vi) Withhold further awards for the program; or (vii) Take other remedies that may be legally available. [61 FR 13987, Mar. 28, 1996, as amended at 80 FR 75941, Dec. 7, 2015] § 761.35 Periodic grantee reports. Grantees are responsible for managing the day-to-day operations of grant and subgrant supported activities. Grantees must monitor grant and subgrant supported activities to assure compliance with applicable Federal requirements and that performance goals are being achieved. Grantee monitoring must cover each program, function or activity of the grant. (a) Semi-annual (nonconstruction) performance reports. (1) In accordance with 2 CFR 200.328, grantees are required to provide the local HUD Office or the local HUD Office of Native American Programs with a semi-annual performance report that evaluates the grantee's performance against its plan. These reports shall include (but are not limited to) the following in summary form: (i) Any change or lack of change in crime statistics or other indicators drawn from the applicant's plan assessment and an explanation of any difference; (ii) Successful completion of any of the strategy components identified in the applicant's plan; (iii) A discussion of any problems encountered in implementing the plan and how they were addressed; (iv) An evaluation of whether the rate of progress meets expectations; (v) A discussion of the grantee's efforts in encouraging resident participation; and (vi) A description of any other programs that may have been initiated, expanded, or deleted as a result of the plan, with an identification of the resources and the number of people involved in the programs and their relation to the plan. (2) Reporting period. (b) Final performance report. (1) Evaluation. (2) Reporting period. (c) Semi-annual financial status reporting requirements. (1) Forms. (2) Reporting period. (i) For purposes of the Assisted Housing Program, semi-annual financial status reports covering the first 180 days of funded activities must be submitted to the local HUD Office between 190 and 210 days after the date of the grant agreement. If the SF-269A is not received on or before the due date (210 days after the date of the grant agreement) by the local HUD Office, grant funds will not be advanced until the reports are received. (ii) For purposes of the Public Housing Program, semi-annual financial status reports (for periods ending June 30 and December 31) must be submitted to the local HUD Office or the local Office of Indian Programs, as applicable, by July 30 and January 31 of each year. If the local HUD Office or the local HUD Office of Native American Programs, as applicable, does not receive the SF-269A on or before the due date, the grant funds will not be advanced until the reports are received. (d) Final financial status report (SF-269A). (1) Cumulative summary. (i) For purposes of the Assisted Housing Program, the grantee must remit such funds to HUD within 90 days after the termination of the grant agreement. (ii) For purposes of the Public Housing Program, the local HUD Office or the local HUD Office of Native American Programs shall notify the grantee, in writing, of the requirement to remit such funds to HUD. The grantee shall remit such funds prior to or upon receipt of the notice. (2) Reporting period. [61 FR 13987, Mar. 28, 1996, as amended at 80 FR 75941, Dec. 7, 2015] § 761.40 Other Federal requirements. In addition to the nondiscrimination and equal opportunity requirements set forth in 24 CFR part 5, subpart A, use of grant funds requires compliance with the following Federal requirements: (a) Labor standards. (i) The grantee and its contractors and subcontractors must pay the following prevailing wage rates, and must comply with all related rules, regulations and requirements: (A) For laborers and mechanics employed in the program, the wage rate determined by the Secretary of Labor pursuant to the Davis-Bacon Act (40 U.S.C. 276a et seq. (B) For laborers and mechanics employed in carrying out nonroutine maintenance in the program, the HUD-determined prevailing wage rate. As used in paragraph (a) of this section, nonroutine maintenance means work items that ordinarily would be performed on a regular basis in the course of upkeep of a property, but have become substantial in scope because they have been put off, and that involve expenditures that would otherwise materially distort the level trend of maintenance expenses. Nonroutine maintenance may include replacement of equipment and materials rendered unsatisfactory because of normal wear and tear by items of substantially the same kind. Work that constitutes reconstruction, a substantial improvement in the quality or kind of original equipment and materials, or remodeling that alters the nature or type of housing units is not nonroutine maintenance. (ii) The employment of laborers and mechanics is subject to the provisions of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333). (2) The provisions of paragraph (a)(1) of this section shall not apply to labor contributed under the following circumstances: (i) Upon the request of any resident management corporation, HUD may, subject to applicable collective bargaining agreements, permit residents (for purposes of the Public Housing Program, residents of a program managed by the resident management corporation) to volunteer a portion of their labor. (ii) An individual may volunteer to perform services if: (A) The individual does not receive compensation for the voluntary services, or is paid expenses, reasonable benefits, or a nominal fee for voluntary services; and (B) Is not otherwise employed at any time in the work subject to paragraphs (a)(1)(i)(A) or (a)(1)(i)(B) of this section. (b) Flood insurance. (1) The community in which the area is situated is participating in the National Flood Insurance Program in accordance with 44 CFR parts 59 through 79; or (2) Less than a year has passed since FEMA notification to the community regarding such hazards; and (3) Flood insurance on the structure is obtained in accordance with section 102(a) of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001). (c) Lead-based paint. (d) Conflicts of interest. (1) Who is an employee, agent, consultant, officer, or elected or appointed official of the grantee, that receives assistance under the program and who exercises or has exercised any functions or responsibilities with respect to assisted activities; or (2) Who is in a position to participate in a decisionmaking process or gain inside information with regard to such activities. (e) For IHAs, (f) Intergovernmental Review. Federal Register (g) Environmental review. [61 FR 13987, Mar. 28, 1996, as amended at 64 FR 49921, Sept. 14, 1999; 64 FR 50227, Sept. 15, 1999, 80 FR 75941, Dec. 7, 2015]