42 U.S.C. § 1437z–3 — Public housing Capital and Operating Funds

**(a) Merger into Capital Fund** Except as otherwise provided in the Quality Housing and Work Responsibility Act of 1998, any assistance made available for public housing under section 1437l of this title before October 1, 1999, shall be merged into the Capital Fund established under subsection (d). **(b) Merger into Operating Fund** Except as otherwise provided in the Quality Housing and Work Responsibility Act of 1998, any assistance made available for public housing under this section before October 1, 1999, shall be merged into the Operating Fund established under subsection (e). **(c) Allocation amount** (1) **In general** — For fiscal year 2000 and each fiscal year thereafter, the Secretary shall allocate amounts in the Capital Fund and Operating Funds 11 So in original. Probably should be “Fund”. for assistance for public housing agencies eligible for such assistance. The Secretary shall determine the amount of the allocation for each eligible agency, which shall be, for any fiscal year beginning after the effective date of the formulas described in subsections (d)(2) and (e)(2)— (A) for assistance from the Capital Fund, the amount determined for the agency under the formula under subsection (d)(2); and (B) for assistance from the Operating Fund, the amount determined for the agency under the formula under subsection (e)(2). (2) **Funding** — There are authorized to be appropriated for assistance for public housing agencies under this section the following amounts: (A) *Capital Fund* — For allocations of assistance from the Capital Fund, $3,000,000,000 for fiscal year 1999, and such sums as may be necessary for fiscal years 2000, 2001, 2002, and 2003. (B) *Operating Fund* — For allocations of assistance from the Operating Fund, $2,900,000,000 for fiscal year 1999, and such sums as may be necessary for each of fiscal years 2000, 2001, 2002, and 2003. **(d) Capital Fund** (1) **In general** — The Secretary shall establish a Capital Fund for the purpose of making assistance available to public housing agencies to carry out capital and management activities, including— (A) the development, financing, and modernization of public housing projects, including the redesign, reconstruction, and reconfiguration of public housing sites and buildings (including accessibility improvements) and the development of mixed-finance projects; (B) vacancy reduction; (C) addressing deferred maintenance needs and the replacement of obsolete utility systems and dwelling equipment; (D) planned code compliance; (E) management improvements, including the establishment and initial operation of computer centers in and around public housing through a Neighborhood Networks initiative, for the purpose of enhancing the self-sufficiency, employability, and economic self-reliance of public housing residents by providing them with onsite computer access and training resources; (F) demolition and replacement; (G) resident relocation; (H) capital expenditures to facilitate programs to improve the empowerment and economic self-sufficiency of public housing residents and to improve resident participation; (I) capital expenditures to improve the security and safety of residents; (J) homeownership activities, including programs under [section 1437z–4 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437z-4&num=0&edition=prelim); (K) improvement of energy and water-use efficiency by installing fixtures and fittings that conform to the American Society of Mechanical Engineers/American National Standards Institute standards A112.19.2–1998 and A112.18.1–2000, or any revision thereto, applicable at the time of installation, and by increasing energy efficiency and water conservation by such other means as the Secretary determines are appropriate; and (L) integrated utility management and capital planning to maximize energy conservation and efficiency measures. (2) **Formula** — The Secretary shall develop a formula for determining the amount of assistance provided to public housing agencies from the Capital Fund for a fiscal year, which shall include a mechanism to reward performance. The formula may take into account such factors as— (A) the number of public housing dwelling units owned, assisted, or operated by the public housing agency, the characteristics and locations of the projects, and the characteristics of the families served and to be served (including the incomes of the families); (B) the need of the public housing agency to carry out rehabilitation and modernization activities, replacement housing, and reconstruction, construction, and demolition activities related to public housing dwelling units owned, assisted, or operated by the public housing agency, including backlog and projected future needs of the agency; (C) the cost of constructing and rehabilitating property in the area; (D) the need of the public housing agency to carry out activities that provide a safe and secure environment in public housing units owned, assisted, or operated by the public housing agency; (E) any record by the public housing agency of exemplary performance in the operation of public housing, as indicated by the system of performance indicators established pursuant to [section 1437d(j) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j&num=0&edition=prelim); and (F) any other factors that the Secretary determines to be appropriate. (3) **Conditions on use for development and modernization** (A) *Development* — Except as otherwise provided in this chapter, any public housing developed using amounts provided under this subsection, or under section 1437l of this title as in effect before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998, shall be operated under the terms and conditions applicable to public housing during the 40-year period that begins on the date on which the project (or stage of the project) becomes available for occupancy. (B) *Modernization* — Except as otherwise provided in this chapter, any public housing or portion thereof that is modernized using amounts provided under this subsection or under section 1437l of this title (as in effect before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998) shall be maintained and operated under the terms and conditions applicable to public housing during the 20-year period that begins on the latest date on which modernization is completed. (C) *Applicability of latest expiration date* — Public housing subject to this paragraph or to any other provision of law mandating the operation of the housing as public housing or under the terms and conditions applicable to public housing for a specified length of time, shall be maintained and operated as required until the latest such expiration date. **(e) Operating Fund** (1) **In general** — The Secretary shall establish an Operating Fund for the purpose of making assistance available to public housing agencies for the operation and management of public housing, including— (A) procedures and systems to maintain and ensure the efficient management and operation of public housing units (including amounts sufficient to pay for the reasonable costs of review by an independent auditor of the documentation or other information maintained pursuant to [section 1437d(j)(6) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j/6&num=0&edition=prelim) by a public housing agency or resident management corporation to substantiate the performance of that agency or corporation); (B) activities to ensure a program of routine preventative maintenance; (C) anticrime and antidrug activities, including the costs of providing adequate security for public housing residents, including above-baseline police service agreements; (D) activities related to the provision of services, including service coordinators for elderly persons or persons with disabilities; (E) activities to provide for management and participation in the management and policymaking of public housing by public housing residents; (F) the costs of insurance; (G) the energy costs associated with public housing units, with an emphasis on energy conservation; (H) the costs of administering a public housing work program under [section 1437j of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437j&num=0&edition=prelim), including the costs of any related insurance needs; (I) the costs of repaying, together with rent contributions, debt incurred to finance the rehabilitation and development of public housing units, which shall be subject to such reasonable requirements as the Secretary may establish; (J) the costs associated with the operation and management of mixed finance projects, to the extent appropriate; and (K) the costs of operating computer centers in public housing through a Neighborhood Networks initiative described in subsection (d)(1)(E), and of activities related to that initiative. (2) **Formula** (A) *In general* — The Secretary shall establish a formula for determining the amount of assistance provided to public housing agencies from the Operating Fund for a fiscal year. The formula may take into account— (i) standards for the costs of operating and reasonable projections of income, taking into account the characteristics and locations of the public housing projects and characteristics of the families served and to be served (including the incomes of the families), or the costs of providing comparable services as determined in accordance with criteria or a formula representing the operations of a prototype well-managed public housing project; (ii) the number of public housing dwelling units owned, assisted, or operated by the public housing agency; (iii) the number of public housing dwelling units owned, assisted, or operated by the public housing agency that are chronically vacant and the amount of assistance appropriate for those units; (iv) to the extent quantifiable, the extent to which the public housing agency provides programs and activities designed to promote the economic self-sufficiency and management skills of public housing residents; (v) the need of the public housing agency to carry out anti-crime and anti-drug activities, including providing adequate security for public housing residents; (vi) the amount of public housing rental income foregone by the public housing agency as a result of escrow savings accounts under section 1437u(d)(2) 22 See References in Text note below. of this title for families participating in a family self-sufficiency program of the agency under such [section 1437u of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437u&num=0&edition=prelim); and (vii) any other factors that the Secretary determines to be appropriate. (B) *Incentive to increase certain rental income* — The formula shall provide an incentive to encourage public housing agencies to facilitate increases in earned income by families in occupancy. Any such incentive shall provide that the agency shall benefit from increases in such rental income and that such amounts accruing to the agency pursuant to such benefit may be used only for low-income housing or to benefit the residents of the public housing agency. (C) *Treatment of savings* (i) *In general* — The treatment of utility and waste management costs under the formula shall provide that a public housing agency shall receive the full financial benefit from any reduction in the cost of utilities or waste management resulting from any contract with a third party to undertake energy conservation improvements in one or more of its public housing projects. (ii) *Third party contracts* — Contracts described in clause (i) may include contracts for equipment conversions to less costly utility sources, projects with resident-paid utilities, and adjustments to frozen base year consumption, including systems repaired to meet applicable building and safety codes and adjustments for occupancy rates increased by rehabilitation. (iii) *Term of contract* — The total term of a contract described in clause (i) shall not exceed 20 years to allow longer payback periods for retrofits, including windows, heating system replacements, wall insulation, site-based generation, advanced energy savings technologies, including renewable energy generation, and other such retrofits. (iv) *Existing contracts* — The term of a contract described in clause (i) that, as of December 26, 2007, is in repayment and has a term of not more than 12 years, may be extended to a term of not more than 20 years to permit additional energy conservation improvements without requiring the reprocurement of energy performance contractors. (D) *Freeze of consumption levels* (i) *In general* — A small public housing agency, as defined in [section 1437z–10(a) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437z–10/a&num=0&edition=prelim), may elect to be paid for its utility and waste management costs under the formula for a period, at the discretion of the small public housing agency, of not more than 20 years based on the small public housing agency’s average annual consumption during the 3-year period preceding the year in which the election is made (in this subparagraph referred to as the “consumption base level”). (ii) *Initial adjustment in consumption base level* — The Secretary shall make an initial one-time adjustment in the consumption base level to account for differences in the heating degree day average over the most recent 20-year period compared to the average in the consumption base level. (iii) *Adjustments in consumption base level* — The Secretary shall make adjustments in the consumption base level to account for an increase or reduction in units, a change in fuel source, a change in resident controlled electricity consumption, or for other reasons. (iv) *Savings* — All cost savings resulting from an election made by a small public housing agency under this subparagraph— (I) shall accrue to the small public housing agency; and (II) may be used for any public housing purpose at the discretion of the small public housing agency. (v) *Third parties* — A small public housing agency making an election under this subparagraph— (I) may use, but shall not be required to use, the services of a third party in its energy conservation program; and (II) shall have the sole discretion to determine the source, and terms and conditions, of any financing used for its energy conservation program. (3) **Condition on use** — No portion of any public housing project operated using amounts provided under this subsection, or under this section as in effect before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998, may be disposed of before the expiration of the 10-year period beginning upon the conclusion of the fiscal year for which such amounts were provided, except as otherwise provided in this chapter. **(f) Negotiated rulemaking procedure** The formulas under subsections (d)(2) and (e)(2) shall be developed according to procedures for issuance of regulations under the negotiated rulemaking procedure under subchapter III of chapter 5 of title 5. **(g) Limitations on use of funds** (1) **Flexibility in use of funds** (A) *Flexibility for Capital Fund amounts* — Of any amounts appropriated for fiscal year 2000 or any fiscal year thereafter that are allocated for fiscal year 2000 or any fiscal year thereafter from the Capital Fund for any public housing agency, the agency may use not more than 20 percent for activities that are eligible under subsection (e) for assistance with amounts from the Operating Fund, but only if the public housing agency plan for the agency provides for such use. (B) *Flexibility for Operating Fund amounts* — Of any amounts appropriated for fiscal year 2016 or any fiscal year thereafter that are allocated for fiscal year 2016 or any fiscal year thereafter from the Operating Fund for any public housing agency, the agency may use not more than 20 percent for activities that are eligible under subsection (d) for assistance with amounts from the Capital Fund, but only if the public housing plan under [section 1437c–1 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437c-1&num=0&edition=prelim) for the agency provides for such use. (2) **Full flexibility for small PHAs** — Of any amounts allocated for any fiscal year for any public housing agency that owns or operates less than 250 public housing dwelling units, is not designated pursuant to [section 1437d(j)(2) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j/2&num=0&edition=prelim) as a troubled public housing agency, and (in the determination of the Secretary) is operating and maintaining its public housing in a safe, clean, and healthy condition, the agency may use any such amounts for any eligible activities under subsections (d)(1) and (e)(1), regardless of the fund from which the amounts were allocated and provided. This subsection shall take effect on October 21, 1998. (3) **Limitation on new construction** (A) *In general* — Except as provided in subparagraphs (B) and (C), a public housing agency may not use any of the amounts allocated for the agency from the Capital Fund or Operating Fund for the purpose of constructing any public housing unit, if such construction would result in a net increase from the number of public housing units owned, assisted, or operated by the public housing agency on October 1, 1999, including any public housing units demolished as part of any revitalization effort. (B) *Exception regarding use of assistance* — A public housing agency may use amounts allocated for the agency from the Capital Fund or Operating Fund for the construction and operation of housing units that are available and affordable to low-income families in excess of the limitations on new construction set forth in subparagraph (A), but the formulas established under subsections (d)(2) and (e)(2) shall not provide additional funding for the specific purpose of allowing construction and operation of housing in excess of those limitations (except to the extent provided in subparagraph (C)). (C) *Exception regarding formulas* — Subject to reasonable limitations set by the Secretary, the formulas established under subsections (d)(2) and (e)(2) may provide additional funding for the operation and modernization costs (but not the initial development costs) of housing in excess of amounts otherwise permitted under this paragraph, and such amounts may be so used, if— (i) such units are part of a mixed-finance project or otherwise leverage significant additional private or public investment; and (ii) the estimated cost of the useful life of the project is less than the estimated cost of providing tenant-based assistance under section 1437f(o) of this title for the same period of time. **(h) Technical assistance** To the extent amounts are provided in advance in appropriations Acts, the Secretary may make grants or enter into contracts or cooperative agreements in accordance with this subsection for purposes of providing, either directly or indirectly— (1) technical assistance to public housing agencies, resident councils, resident organizations, and resident management corporations, including assistance relating to monitoring and inspections; (2) training for public housing agency employees and residents; (3) data collection and analysis; (4) training, technical assistance, and education to public housing agencies that are— (A) at risk of being designated as troubled under [section 1437d(j) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j&num=0&edition=prelim), to assist such agencies from being so designated; and (B) designated as troubled under [section 1437d(j) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j&num=0&edition=prelim), to assist such agencies in achieving the removal of that designation; (5) contract expertise; (6) training and technical assistance to assist in the oversight and management of public housing or tenant-based assistance; (7) clearinghouse services in furtherance of the goals and activities of this subsection; and (8) assistance in connection with the establishment and operation of computer centers in public housing through a Neighborhood Networks initiative described in subsection (d)(1)(E). As used in this subsection, the terms “training” and “technical assistance” shall include training or technical assistance and the cost of necessary travel for participants in such training or technical assistance, by or to officials and employees of the Department and of public housing agencies, and to residents and to other eligible grantees. **(i) Eligibility of units acquired from proceeds of sales under demolition or disposition plan** If a public housing agency uses proceeds from the sale of units under a homeownership program in accordance with [section 1437z–4 of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437z-4&num=0&edition=prelim) to acquire additional units to be sold to low-income families, the additional units shall be counted as public housing for purposes of determining the amount of the allocation to the agency under this section until sale by the agency, but in no case longer than 5 years. **(j) Penalty for slow expenditure of capital funds** (1) **Obligation of amounts** — Except as provided in paragraph (4) and subject to paragraph (2), a public housing agency shall obligate any assistance received under this section not later than 24 months after, as applicable— (A) the date on which the funds become available to the agency for obligation in the case of modernization; or (B) the date on which the agency accumulates adequate funds to undertake modernization, substantial rehabilitation, or new construction of units. (2) **Extension of time period for obligation** — The Secretary— (A) may, extend the time period under paragraph (1) for a public housing agency, for such period as the Secretary determines to be necessary, if the Secretary determines that the failure of the agency to obligate assistance in a timely manner is attributable to— (i) litigation; (ii) obtaining approvals of the Federal Government or a State or local government; (iii) complying with environmental assessment and abatement requirements; (iv) relocating residents; (v) an event beyond the control of the public housing agency; or (vi) any other reason established by the Secretary by notice published in the Federal Register; (B) shall disregard the requirements of paragraph (1) with respect to any unobligated amounts made available to a public housing agency, to the extent that the total of such amounts does not exceed 10 percent of the original amount made available to the public housing agency; and (C) may, with the prior approval of the Secretary, extend the time period under paragraph (1), for an additional period not to exceed 12 months, based on— (i) the size of the public housing agency; (ii) the complexity of capital program of the public housing agency; (iii) any limitation on the ability of the public housing agency to obligate the amounts allocated for the agency from the Capital Fund in a timely manner as a result of State or local law; or (iv) such other factors as the Secretary determines to be relevant. (3) **Effect of failure to comply** (A) *Prohibition of new assistance* — A public housing agency shall not be awarded assistance under this section for any month during any fiscal year in which the public housing agency has funds unobligated in violation of paragraph (1) or (2). (B) *Withholding of assistance* — During any fiscal year described in subparagraph (A), the Secretary shall withhold all assistance that would otherwise be provided to the public housing agency. If the public housing agency cures its failure to comply during the year, it shall be provided with the share attributable to the months remaining in the year. (C) *Redistribution* — The total amount of any funds not provided public housing agencies by operation of this paragraph shall be allocated for agencies determined under [section 1437d(j) of this title](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437d/j&num=0&edition=prelim) to be high-performing. (4) **Exception to obligation requirements** (A) *In general* — Subject to subparagraph (B), if the Secretary has consented, before the effective date under section 503(a) of the Quality Housing and Work Responsibility Act of 1998, to an obligation period for any agency longer than provided under paragraph (1), a public housing agency that obligates its funds before the expiration of that period shall not be considered to be in violation of paragraph (1). (B) *Prior fiscal years* — Notwithstanding subparagraph (A), any funds appropriated to a public housing agency for fiscal year 1997 or prior fiscal years shall be fully obligated by the public housing agency not later than September 30, 1999. (5) **Expenditure of amounts** (A) *In general* — A public housing agency shall spend any assistance received under this section not later than 4 years (plus the period of any extension approved by the Secretary under paragraph (2)) after the date on which funds become available to the agency for obligation. (B) *Enforcement* — The Secretary shall enforce the requirement of subparagraph (A) through default remedies up to and including withdrawal of the funding. (6) **Right of recapture** — Any obligation entered into by a public housing agency shall be subject to the right of the Secretary to recapture the obligated amounts for violation by the public housing agency of the requirements of this subsection. (7) **Treatment of replacement reserve** — The requirements of this subsection shall not apply to funds held in replacement reserves established pursuant to subsection (n). **(k) Treatment of nonrental income** A public housing agency that receives income from nonrental sources (as determined by the Secretary) may retain and use such amounts without any decrease in the amounts received under this section from the Capital or Operating Fund. Any such nonrental amounts retained shall be used only for low-income housing or to benefit the residents assisted by the public housing agency. **(l) Provision of only capital or operating assistance** (1) **Authority** — In appropriate circumstances, as determined by the Secretary, a public housing agency may commit capital assistance only, or operating assistance only, for public housing units, which assistance shall be subject to all of the requirements applicable to public housing except as otherwise provided in this subsection. (2) **Exemptions** — In the case of any public housing unit assisted pursuant to the authority under paragraph (1), the Secretary may, by regulation, reduce the period under subsection (d)(3) or (e)(3), as applicable, during which such units must be operated under requirements applicable to public housing. In cases in which there is commitment of operating assistance but no commitment of capital assistance, the Secretary may make section 8 [[42 U.S.C. 1437f](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section1437f&num=0&edition=prelim)] requirements applicable, as appropriate, by regulation. **(m) Treatment of public housing** (1) **Repealed. Pub. L. 108–7, div. K, title II, § 212(a), Feb. 20, 2003, 117 Stat. 503** (2) **Reduction of asthma incidence** — Notwithstanding any other provision of this section, the New York City Housing Authority may, in its sole discretion, from amounts provided from the Operating and Capital Funds, or from amounts provided for public housing before amounts are made available from such Funds, use not more than exceeding 33 So in original. $500,000 per year for the purpose of initiating, expanding or continuing a program for the reduction of the incidence of asthma among residents. The Secretary shall consult with the Administrator of the Environmental Protection Agency and the Secretary of Health and Human Services to identify and consider sources of funding for the reduction of the incidence of asthma among recipients of assistance under this subchapter. (3) **Services for elderly residents** — Notwithstanding any other provision of this section, the New York City Housing Authority may, in its sole discretion, from amounts provided from the Operating and Capital Funds, or from amounts provided for public housing before the amounts are made available from such Funds, use not more than $600,000 per year for the purpose of developing a comprehensive plan to address the need for services for elderly residents. Such plan may be developed by a partnership created by such Housing Authority and may include the creation of a model project for assisted living at one or more developments. The model project may provide for contracting with private parties for the delivery of services. (4) **Effective date** — This subsection shall apply to fiscal year 1999 and each fiscal year thereafter. **(n) Establishment of replacement reserves** (1) **In general** — Public housing agencies shall be permitted to establish a replacement reserve to fund any of the capital activities listed in subsection (d)(1). (2) **Source and amount of funds for replacement reserve** — At any time, a public housing agency may deposit funds from such agency’s Capital Fund into a replacement reserve, subject to the following: (A) At the discretion of the Secretary, public housing agencies may transfer and hold in a replacement reserve funds originating from additional sources. (B) No minimum transfer of funds to a replacement reserve shall be required. (C) At any time, a public housing agency may not hold in a replacement reserve more than the amount the public housing authority has determined necessary to satisfy the anticipated capital needs of properties in its portfolio assisted under this section, as outlined in its Capital Fund 5-Year Action Plan, or a comparable plan, as determined by the Secretary. (D) The Secretary may establish, by regulation, a maximum replacement reserve level or levels that are below amounts determined under subparagraph (C), which may be based upon the size of the portfolio assisted under this section or other factors. (3) **Transfer of operating funds** — In first establishing a replacement reserve, the Secretary may allow public housing agencies to transfer more than 20 percent of its operating funds into its replacement reserve. (4) **Expenditure** — Funds in a replacement reserve may be used for purposes authorized by subsection (d)(1) and contained in its Capital Fund 5-Year Action Plan. (5) **Management and report** — The Secretary shall establish appropriate accounting and reporting requirements to ensure that public housing agencies are spending funds on eligible projects and that funds in the replacement reserve are connected to capital needs. **(o) Public housing heating guidelines** The Secretary shall publish model guidelines for minimum heating requirements for public housing dwelling units operated by public housing agencies receiving assistance under this section.