81 FR 34290 - Native American Housing Assistance and Self-Determination Act; Revisions to the Indian Housing Block Grant Program Formula

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Federal Register Volume 81, Issue 104 (May 31, 2016)

Page Range		34290-34301
FR Document		2016-12596

This proposed rule would revise the Indian Housing Block Grant (IHBG) Program allocation formula authorized by section 302 of the Native American Housing Assistance and Self-Determination Act of 1996, as amended (NAHASDA). Through the IHBG Program, HUD provides federal housing assistance for Indian tribes in a manner that recognizes the right of Indian self-determination and tribal self-government. HUD negotiated the proposed rule with active tribal participation and using the procedures of the Negotiated Rulemaking Act of 1990. The proposed regulatory changes reflect the consensus decisions reached by HUD and the tribal representatives on ways to improve and clarify the current regulations governing the IHBG Program formula.

Federal Register, Volume 81 Issue 104 (Tuesday, May 31, 2016)

[Federal Register Volume 81, Number 104 (Tuesday, May 31, 2016)]
[Proposed Rules]
[Pages 34290-34301]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-12596]

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 1000

[Docket No. FR-5650-P-12]
RIN 2577-AC90

Native American Housing Assistance and Self-Determination Act;
Revisions to the Indian Housing Block Grant Program Formula

AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise the Indian Housing Block Grant
(IHBG) Program allocation formula authorized by section 302 of the
Native American Housing Assistance and Self-Determination Act of 1996,
as amended (NAHASDA). Through the IHBG Program, HUD provides federal
housing assistance for Indian tribes in a manner that recognizes the
right of Indian self-determination and tribal self-government. HUD
negotiated the proposed rule with active tribal participation and using
the procedures of the Negotiated Rulemaking Act of 1990. The proposed
regulatory changes reflect the consensus decisions reached by HUD and
the tribal representatives on ways to improve and clarify the current
regulations governing the IHBG Program formula.

DATES: Comment Due Date: August 1, 2016.

ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. Communications must refer
to the above docket number and title. There are two methods for
submitting public comments. All submissions must refer to the above
docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.

[[Page 34291]]

2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.

Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.

No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Public Comments. HUD will make all properly
submitted comments and communications available for public inspection
and copying between 8 a.m. and 5 p.m. weekdays at the above address.
Due to security measures at the HUD Headquarters building, you must
schedule an appointment in advance to review the public comments by
calling the Regulations Division at 202-708-3055 (this is not a toll-
free number). Individuals with speech or hearing impairments may access
this number via TTY by calling the toll-free Federal Relay Service at
800-877-8339. Copies of all comments submitted are available for
inspection and downloading at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Randall R. Akers, Acting Deputy
Assistant Secretary for Native American Programs, Office of Public and
Indian Housing, Department of Housing and Urban Development, 451
Seventh Street, SW., Room 4126, Washington, DC 20410-5000, telephone,
(202) 402-7598 (this is not a toll-free number). Hearing or speech-
impaired individuals may access this number via TTY by calling the
toll-free Federal Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

The Native American Housing Assistance and Self-Determination Act
of 1996 (25 U.S.C. 4101 et seq.) (NAHASDA) changed the way that housing
assistance is provided to Native Americans. NAHASDA eliminated several
separate assistance programs and replaced them with a single block
grant program, known as the Indian Housing Block Grant (IHBG) Program.
NAHASDA and its implementing regulations, codified at 24 CFR part 1000,
recognize tribal self-determination and self-governance while
establishing reasonable standards of accountability. Reflective of
this, section 106 of NAHASDA provides that HUD shall develop
implementing regulations with active tribal participation and using the
procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570).
NAHASDA has been amended and reauthorized several times since being
signed into law in 1996. Following the enactment of the Native American
Housing Assistance and Self-Determination Reauthorization Act of 2008
(Pub. L. 110-411, approved October 14, 2008) (NAHASDA Reauthorization
Act) HUD established a negotiated rulemaking committee on January 5,
2010 (75 FR 423), that focused on implementing the NAHASDA
Reauthorization Act and prior amendments to NAHASDA. The negotiated
rulemaking committee addressed all IHBG program regulations, except
those provisions which govern the NAHASDA allocation formula codified
in subpart D of 24 CFR part 1000. As a result of that negotiated
rulemaking, HUD published a final rule on December 3, 2012 (77 FR
71513), that revised HUD regulations governing the IHBG Program and the
Title VI Loan Guarantee program (under Title VI of NAHASDA, 25 U.S.C.
4191, et seq.) A separate negotiated rulemaking was subsequently begun
to review the allocation formula regulations.

II. The IHBG Formula Negotiated Rulemaking Committee

On July 3, 2012 (77 FR 39452) and September 18, 2012 (77 FR 57544),
HUD published notices in the Federal Register announcing HUD's intent
to establish a negotiated rulemaking committee for the purposes of
reviewing the regulations at 24 CFR part 1000, subpart D, and
negotiating recommendations for a possible proposed rule modifying the
IHBG formula. On June 12, 2013 (78 FR 35178), HUD published for public
comment the names and affiliations of the committee's proposed members.
On July 30, 2013 (78 FR 45903), after considering public comment on the
proposed membership, HUD published a Federal Register notice announcing
the final list of members of the IHBG Formula Negotiated Rulemaking
Committee (Committee) and announcing the date of the first meeting of
the Committee. The Committee membership consists of 24 designated
representatives of tribal governments (or authorized designees of those
tribal governments). The Committee membership reflected a balanced
representation of Indian tribes, both geographically and based on size.
In addition to the tribal members, there were two HUD representatives
on the Committee. Committee meetings took place on August 27-28, 2013,
September 17-19, 2013, April 23-24, 2014, June 11-13, 2014, July 29-31,
2014, August, 26-28, 2014, August 11-13, 2015, and January 26-27, 2016.
The Committee agreed to operate based on consensus rulemaking and its
approved charter and protocols. All of the Committee meetings were
announced in the Federal Register and were open to the public.\1\
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\1\ See, 78 FR 45903 (July 30, 2013); 78 FR 54416 (September 4,
2013); 79 FR 14204 (March 13, 2014); 79 FR 28700 (May 23, 2014); 80
FR 30004 (May 26, 2015); 80 FR 33157 (June 11, 2015); 81 FR 881
(January 8, 2016).
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The Committee divided itself into multiple workgroups to analyze
specified provisions of the IHBG formula and to draft any new or
revised regulatory language it believed was necessary. A workgroup was
responsible for analyzing the regulations for the Need component.
Another workgroup reviewed the provisions governing the Formula Current
Assisted Stock (FCAS) component. The workgroups were not authorized to
reach any final or binding decisions but rather, reported to the full
Committee. The draft regulatory language developed by the workgroups
was then brought before the full Committee for review, amendment, and
approval.
At the August 2014 meeting, an additional study group, the Data
Study Group, was established to assess alternative data sources to the
2000 United States Decennial Census, which currently serves as the data
source for the factors that are used to calculate the Need component of
the allocation formula, including American Indian and Alaskan Native
(AIAN) households with housing cost burdens, inadequate housing, low-
and moderate-income AIAN households, and AIAN population. The Data
Study Group was comprised of one Committee member from each of the six
HUD-designated ONAP regions, plus one HUD representative. The Data
Study Group members identified three technical experts and HUD provided
a technical expert to assist with the work. Meetings of the Data Study
Group were open to all Committee members and to the public. The Data
Study Group met both

[[Page 34292]]

telephonically and in-person and operated on a consensus basis.
In a Federal Register notice published on September 25, 2014 at 79
FR 57489, the Committee solicited suggestions from the public for
potential data sources that would achieve an optimal balance of the
following factors: recognition of tribal sovereignty; data relevant to
eligible AIAN housing needs; and collected using a methodology that is
objective, equitable, transparent, consistent, capable of being applied
to all existing formula areas, statistically reliable, and replicable
both over time and diverse geographies. The data would need to be
collected and submitted by proficient persons or organizations with
appropriate capacity and training and to be collected on a recurring
basis at reasonable intervals or be capable of reliable statistical
aging. Finally, the data source could not impose an undue
administrative or financial burden upon tribes, needed to be cost-
effective, and be capable of being fully evaluated by the Data Study
Group within a one-year timeframe.
After receiving responses to the September 25, 2014 Federal
Register notice, the Data Study Group identified 49 different data
sources that were reviewed by the technical experts against a pre-
determined set of screening criteria. Of the 49 nominated data sources,
the Data Study Group agreed unanimously that 30 did not meet these
criteria. The technical experts then prepared detailed
characterizations of the remaining 19 data sources. Based on the
characterization process and the discussion that followed, the Data
Study Group rejected 10 more data sources that did not meet the pre-
determined criteria. The Data Study Group moved nine remaining data
sources forward for comprehensive evaluation. These included the
following four sets of core data and five sets of support data:

Core Data

Most Recent Decennial Census data collected by the U.S. Census
Bureau
American Community Survey collected by the U.S. Census Bureau
National Tribal Survey to be Administered by a Federal Agency
National Tribal Survey to be Administered by tribes

Support Data

Tribal Enrollment Data
Indian Health Service Population Projections
U.S. Census Bureau Population Estimates
Data Reported by IHBG Grant Recipients on Formula Response
Form
Total Development Costs (TDC)

The Data Study Group carefully considered the evaluation results of
technical experts, had multiple discussions among its membership,
including requests for clarification from the technical experts, and on
July 31, 2015, issued its final report containing a recommendation for
a data source or sources to be used in calculating the AIAN persons
variable of the Need component of the IHBG funding formula, which it
presented to the full Committee. Specifically, the Data Study Group
recommended that the AIAN population be the greater of the most
recently available American Community Survey (ACS), Decennial Census,
or Challenge data, and that data no longer be aged. This proposal did
not reach consensus at the full Committee level. The Data Study Group's
full report can be found as a supporting document to this proposed rule
at www.Regulations.gov.

III. This Proposed Rule

The Committee undertook a comprehensive review of the IHBG Formula.
The Committee also reviewed any statutory changes that still needed to
be addressed in the regulations. The Committee identified certain areas
of the IHBG formula that required clarification, were outdated, or
could be improved. With the exception of changes to Sec.
1000.330(b)(ii), this proposed rule reflects the consensus decisions
reached by the Committee during the negotiated rulemaking process on
the best way to address these issues. The following section of this
preamble provides a summary of the consensus recommended changes to the
IHBG formula by this proposed rule.

A. Revision of Definition of Formula Area (Sec. 1000.302)

To conform Sec. 1000.302 to the decision of the United States
Court of Appeals for the Tenth Circuit in United Keetoowah Band of
Cherokee Indians of Oklahoma v. United States Department of Housing and
Urban Development,\2\ HUD is revising the definition of formula area at
24 CFR 1000.302 by striking the reference to ``court jurisdiction'' in
paragraph (2)(i) of the definition.
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\2\ 567 F.3d 1235 (10th Cir. 2009).
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B. Continued Funding of Section 8 Units (Sec. 1000.306)

The proposed rule would make a technical amendment to Sec.
1000.306 to eliminate paragraph (c), an outdated section that addressed
how Section 8 units would be treated under the formula. Currently,
Sec. 1000.306(c) provides that, during the five-year review of the
FCAS component of the formula, the count of units associated with
expired contracts for tenant-based Section 8 rental assistance would be
reduced by the same percentage as the current assisted rental stock has
diminished since September 30, 1999. After HUD issued this regulation,
section 502(a) of NAHASDA was amended by the Omnibus Indian Advancement
Act (Pub. L. 106-568, approved December 27, 2000) (25 U.S.C. 4181(a))
to provide that housing subject to a contract for tenant-based Section
8 rental assistance prior to September 30, 1997, under the authority of
the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.) is to be
considered a dwelling unit for purposes of section 302(b)(1) of
NAHASDA. As a result, the proposed rule removes paragraph (c) from
Sec. 1000.306.

C. Components of IHBG Formula (Sec. 1000.310)

The proposed rule would revise Sec. 1000.310 to reflect that the
IHBG formula would consist of four components: FCAS (Sec. 1000.316),
Need (Sec. 1000.324), 1996 Minimum (Sec. 1000.340), and Undisbursed
IHBG funds factor (Sec. 1000.342). FCAS, Need, and 1996 Minimum are
existing components of the formula. The proposed addition of the
Undisbursed IHBG funds factor is discussed below.

D. Conversions of Units From Low-Rent FCAS to Mutual Help or From
Mutual Help to Low-Rent FCAS (Sec. 1000.316)

This proposed rule would clarify the type and eligibility of low-
income dwelling units developed under the United States Housing Act of
1937 that are converted from Low-Rent to Mutual Help or, from Mutual
Help to Low-Rent. The Committee proposed a new paragraph (c) to codify
HUD's existing practice and establish the following. Units that were
converted before NAHASDA's effective date of October 1, 1997, would
count in the formula as the type of unit to which they were converted,
and their FCAS eligibility would be evaluated on the basis of the type
of unit to which they were converted. The amount of per unit FCAS
funding for units that were converted after October 1, 1997, would be
determined according to the unit's type specified in the original
Annual Contributions Contract (ACC), i.e. the ACC in effect on
September 30, 1997, while their FCAS eligibility would be evaluated on
the basis of the type to

[[Page 34293]]

which they were converted. Furthermore, the rule would require
recipients to report conversions on their Formula Response Form. The
Committee emphasized that the decision to convert a unit was a local
decision for the tribe or TDHE (tribally designated housing entity) to
make at its discretion.

E. Mutual Help Unit Conveyance (Sec. 1000.318(a))

This proposed rule would clarify in Sec. 1000.318 the FCAS
eligibility of Mutual Help and Turnkey III units developed under the
United States Housing Act of 1937 that are not conveyed within 25 years
from the Date of Full Availability (DOFA plus 25 years). The proposed
rule would provide specific milestones for demonstrating FCAS
eligibility. Specifically, the proposed rule would provide that a unit
may continue to be considered FCAS when conveyance of the unit is
prevented by a legal impediment, if the tribe, TDHE, or Indian Housing
Authority (IHA) has taken all other steps necessary to effectuate the
conveyance and has made and documented reasonable efforts to remove the
impediment. Mutual Help and Turnkey III units that are eligible for
conveyance under the terms of their Mutual Help and Occupancy Agreement
(MHOA) but not conveyed would continue to be considered FCAS if the
delay in conveyance is caused by reasons beyond the control of the
tribe, TDHE, or IHA. Section 302(b)(1)(D) of NAHASDA (25 U.S.C.
4152(b)(1)(D)) provides that the term ``reasons beyond the control of a
recipient'' means, after the recipient makes ``reasonable efforts'' to
resolve all issues necessary for conveyance, the conveyance is still
delayed because there remain delays in obtaining or, the absence of
title status reports, incorrect or inadequate legal descriptions or
other legal documentation necessary for conveyance, clouds on title due
to probate or intestacy or other court proceedings, or any other legal
impediment. Thus, under this proposed rule, to demonstrate reasonable
efforts, the tribe, TDHE or IHA would be required, no later than four
months after the unit becomes eligible for conveyance, to create a
written plan of action that describes the impediment and the actions it
will take to resolve the impediment within 24 months after the date the
unit became eligible for conveyance. If the legal impediment remains
after that 24-month period, the unit would no longer be considered FCAS
unless the tribe, TDHE, or IHA provides evidence from a third party,
such as a Federal, State, or tribal court, or State or Federal agency,
documenting that the impediment continues to prevent conveyance.
Proposed Sec. 1000.318(a)(3) would address Mutual Help and Turnkey III
units that, as of the effective date of this regulation, have not been
conveyed because timely conveyance was demonstrably beyond the tribe's
control. These units would be considered to have become eligible to
convey on the effective date of this regulation, triggering the time
periods for creating a written plan of action to resolve the impediment
and conveying the units or providing the third party evidence of
continued impediment within the 24-month period. Section
1000.318(a)(3)(iv) would apply to units that have not been conveyed due
to legal impediments, and would not apply to units that are eligible
for conveyance before the effective date of this regulation but have
not been conveyed for other reasons.

F. Demolition and Rebuilding of FCAS Units

At the August 2014 meeting, the Committee approved revising Sec.
1000.318 to add a new paragraph (d) to establish the eligibility
criteria for FCAS units that are demolished and rebuilt. Under section
302(b)(1)(C) of NAHASDA, if a unit is demolished and the recipient
rebuilds the unit within 1-year of demolition of the unit, the unit may
continue to be considered an FCAS unit under the formula. To implement
this requirement, the Committee approved a regulatory provision that
would permit the unit to continue to be considered FCAS if the
recipient certifies in writing, within one-year from the date that the
unit becomes damaged or deteriorated, that it has taken tangible action
to demolish and rebuild the unit. In addition, the provision would
require that reconstruction of the unit be completed within four years
of the point at which demolition or replacement became necessary. At
the end of the four year period, the unit would no longer be considered
FCAS unless the recipient notified HUD that the reconstruction of the
unit has been completed. If a recipient fails to rebuild a unit within
the four-year time frame, the unit would nonetheless have been
considered eligible as FCAS during those four years. This provision was
intended to incentivize the reconstruction of properties in a condition
of such significant disrepair that they must be demolished and rebuilt
in order to preserve critical housing stock and ensure that housing
remains available to assist low-income Indian families in the future.
Upon further review, HUD has determined that this provision may
exceed the scope of section 302(b)(1)(C) of NAHASDA. The provision
would have potentially allowed FCAS units that are rebuilt in a time
period that exceeds 1-year from the time of demolition to remain FCAS
units under the formula. While this proposed rule does not propose
specific regulatory language addressing demolished FCAS units, HUD is
seeking public comment on how to address this issue by regulation,
while also remaining within the scope of section 302(b)(1)(C) of
NAHASDA.
In this regard, HUD notes that during this negotiated rulemaking,
the FCAS workgroup considered defining the term ``demolition'' in order
to help clarify the point in time in which the 1-year period begins to
run. For instance, the workgroup discussed whether to define demolition
in cases involving natural disasters or fires as occurring at the time
of the event. The workgroup also considered whether demolition should
be defined as occurring only when a recipient voluntarily demolishes
units in order to clear a site for a new replacement unit. HUD is
specifically soliciting public comment, therefore, on these and
alternative proposals that address section 302(b)(1)(C). Once HUD
receives all public comments on this proposed rule, it is HUD's intent
to afford the Committee, based on the public comment received, another
opportunity at the final negotiated rulemaking session to consider
specific regulatory language addressing this issue to be included in a
final rule.

G. Overlapping Formula Areas (Sec. 1000.326)

This proposed rule would revise Sec. 1000.326(a) to provide in
cases where a State recognized tribe's formula area overlaps with the
formula area of a Federally recognized Indian tribe, that the Federally
recognized Indian tribe would receive the allocation for the formula
area up to its population cap. The revision also provides that the
State recognized tribe would receive the balance of the allocation, if
any exists, up to its own population cap.
Section 1000.326 would also be revised to require that HUD follow
the notice and comment procedures in the definition of ``Formula Area''
(Sec. 1000.302 (2)(ii)) upon receiving a request for expansion or
redefinition of a tribe's formula area, if approving the request would
create an overlap of formula areas with one or more other tribes. This
proposed change is intended

[[Page 34294]]

to ensure that tribes potentially affected by the request be notified
and have the opportunity to comment on the request.

H. Minimum Total Grant Allocation of Carryover Funds (Sec. 1000.329)

Section 1000.329 is proposed as a new provision of the Need
component of the IHBG formula. Section 1000.329 would provide for a
minimum block grant allocation in the event that amounts available for
allocation include carryover funds. This section would provide that
allocations be adjusted to ensure all tribes a minimum block grant
allocation of 0.011547 percent of that year's IHBG appropriation. HUD
and the Committee estimated, based on current year appropriations, that
approximately $3 million would be required to ensure that tribes
receive a minimum allocation of approximately 0.011547 percent of the
annual IHBG appropriation (close to $75,000, given historical
appropriated amounts). Therefore, HUD would set aside an amount equal
to the lesser of $3 million of available carryover funds or the entire
amount of available carryover funds to increase allocations pursuant to
this section. If set-aside carryover funds are insufficient to fund all
eligible tribes at 0.011547 percent of that year's appropriations, the
minimum total grant would be reduced to an amount which can be fully
funded with the available set-aside carryover funds. Set-aside
carryover funds that are not required to fund this additional
allocation would be carried over to the subsequent year's formula. A
tribe would be eligible for a minimum allocation under Sec. 1000.329
if there are eligible households at or below 80 percent of median
income in the tribe's formula area. For purposes of this proposed rule,
``carryover funds'' are defined as any grant funds voluntarily returned
to the formula or not accepted by tribes in a fiscal year. The
definition of carryover funds would not include any amounts that are
returned to the IHBG formula voluntarily or involuntarily pursuant to
Sec. 1000.536, as a result of a HUD action under Sec. 1000.532. The
Committee considered and rejected including such amounts in the
definition of carryover funds under this section.

I. Volatility Control of Changes in Need Component of Formula Caused by
Introduction of New Data Source (Sec. 1000.331)

Section 1000.331 would be added to minimize and phase-in funding
changes to allocations under the Need component of the formula
resulting from the introduction of a new data source under Sec.
1000.330, beginning in fiscal year 2018 (the first year that a new data
source could be introduced). Under Sec. 1000.331, if as a direct
result of the introduction of a new data source, an Indian tribe's
allocation under the Need component of the formula results in an
allocation that is less than 90 percent of the amount it received under
the Need component in the immediate previous fiscal year, the Indian
tribe's Need allocation would be adjusted upward to an amount equal to
90 percent of the previous year's Need allocation. As proposed, this
volatility control provision would not impact other adjustments under
24 CFR part 1000, including minimum funding, census challenges, formula
area changes, or an increase in the total amount of funds available
under the Need component. Section 1000.331 also proposes that in the
event that HUD's IHBG appropriation is reduced and results in a
decrease in the total amount of funds available under the Need
component, an Indian tribe's adjusted allocation under Sec.
1000.331(a) would be reduced by an amount proportionate to the reduced
amount available for distribution under the Need component of the
formula. Adjustments to the tribe's Need allocation under Sec. Sec.
1000.331(b) or (c) would be made after adjustment of the tribe's
allocation under Sec. 1000.331(a).

J. Data Challenges and Appeals of HUD Formula Determinations (Sec.
1000.336)

This rule proposes to revise Sec. 1000.336 to provide that an
Indian tribe, TDHE, and HUD may challenge data used to determine the
proposed undisbursed funds factor, Sec. 1000.342. Specifically, this
section would add the undisbursed funds factor to the list of IHBG
formula data and HUD formula determinations that Indian tribes and
TDHEs may appeal under the formula appeal procedures in Sec. 1000.336.
As the undisbursed funds factor is part of the formula for determining
allocations, its application is not an enforcement action (under 24 CFR
part 1000, subpart F).
In addition, Sec. 1000.336(d) would be revised to clarify the
format and provide the timeframes by which the tribe or TDHE must
submit its appeal of the undisbursed funds factor. As proposed, this
section would provide that the appeal must be in writing and submitted
to HUD no later than 30 days after the tribe's or TDHE's receipt of
HUD's application of the undisbursed funds factor.
This proposed rule also revises Sec. Sec. 1000.336(e) and (f) for
clarity. These revisions do not substantively amend these provisions.

K. Undisbursed IHBG Funds Factor (Sec. 1000.342)

The Committee proposed adding Sec. 1000.342 to encourage tribes to
timely expend their annual grants. Section 1000.342 would add an
undisbursed funds factor to the IHBG formula. As proposed, the
undisbursed funds factor would apply to Indian tribes whose initial
allocation calculation is $5 million or more. A tribe's initial
allocation calculation would include its FCAS, Need, the 1996 Minimum,
and repayments or additions for past over- or under-funding for each
Indian tribe (under 24 CFR part 1000, subpart D). Repayments or
additions would not include repayments resulting from enforcement
actions (24 CFR part 1000, subpart F).
Section Sec. 1000.342(a) proposes that an Indian tribe would be
subject to the undisbursed funds factor if it has undisbursed IHBG
funds in an amount that is greater than the sum of its prior 3 years
initial allocation calculations. Under proposed Sec. 1000.342(c), for
purposes of this section, ``undisbursed IHBG funds'' means the amount
of IHBG funds allocated to an Indian tribe in HUD's line of credit
control system (or successor system) on October 1 of the fiscal year
for which the allocation is made. To determine the amount of
undisbursed IHBG funds of a tribe under an umbrella TDHE (a recipient
that has been designated to receive grant amounts by more than one
Indian tribe), Sec. 1000.342(c) proposes that the TDHE's total balance
in HUD's line of credit control system on October 1 of the fiscal year
for which the allocation is made would be multiplied by a percentage
based on the tribe's proportional share of the initial allocation
calculation of all tribes under the umbrella. Under proposed Sec.
1000.342(b), if subject to the undisbursed funds factor in a given
fiscal year, the Indian tribe's grant allocation would be the greater
of the initial allocation calculation minus the amount of undisbursed
IHBG funds that exceed the sum of the prior 3 years' initial allocation
calculations, or its 1996 Minimum. Section 1000.342(d) also proposes
that amounts subtracted from an initial allocation calculation under
this section would be redistributed under the Need component of the
formula to Indian tribes not subject to this section.

IV. Eighth Meeting of Negotiated Rulemaking Committee--Data Sources for
the Need Variables (Sec. 1000.330)

The eighth meeting of the Committee, which took place on January
26-27, 2016, was convened at the request of the

[[Page 34295]]

Committee following HUD's issuance of a proposal on November 19, 2015,
to resolve the data source issue. Specifically, HUD proposed the use of
the ACS 5-year Estimates as the source of the data for the variables in
paragraphs (a) through (f) of Sec. 1000.324 and the most recent
Decennial Census as the source for the total AIAN persons variable in
Sec. 1000.324(g). In each case, HUD proposed adjusting the data
sources in order to address undercounts reported by the U.S. Census
Bureau and the unique concerns resulting from conducting the ACS sample
in Indian Country.
In an effort to address the concerns of the Committee regarding
this proposal, HUD scheduled the eighth meeting to discuss the use of
these data sources, vote on adjustments to data sources and approve the
final preamble language. HUD's proposal is discussed in more detail
later in this preamble.
Section 1000.330 describes the data source used for the Need
variables in Sec. 1000.324. Currently, Sec. 1000.330 provides that
the data sources for the Need variables ``shall be data available that
is collected in a uniform manner that can be confirmed and verified for
all AIAN households and persons living in an identified area.'' Current
Sec. 1000.330 also states that ``[i]nitially, the data used are the
U.S. Decennial Census data.'' HUD originally codified Sec. 1000.330 in
1998 \3\ and revised the section in 2007.\4\ Currently, HUD uses the
2000 Decennial Census as the data source for the Needs variables.
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\3\ 63 FR 12334, March 12, 1998.
\4\ 72 FR 20018, April 20, 2007.
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Beginning in 2010, the U.S. Census Bureau discontinued use of the
``long form'' that, along with the short-form census questionnaire,
went to a sample of households. The ``long form'' contained additional
questions and provided more detailed socioeconomic information about
the population. As part of this change, the more detailed socioeconomic
information once collected by the long-form questionnaire is now
collected by the ACS. The ACS potentially provides more current data
regarding communities and is sent to a sample of the population on a
rotating basis throughout the decade.
One impact of the discontinuation of the use of the ``long form''
is that data for six of the seven variables in Sec. 1000.324 are no
longer collected by the Decennial Census. During the course of this
negotiated rulemaking the Committee extensively discussed revising
Sec. 1000.330 to use more current data sources, including the ACS,
that might be used to determine Need under the formula. Because of the
complexity of the issue, the Committee agreed by consensus to a
procedure to identify and evaluate alternate data sources.
Specifically, at the sixth negotiated rulemaking meeting in August
2014, the Committee agreed to provide itself with an additional year to
study the issue by delaying implementation of any new data source until
fiscal year 2018. At the same time, the Committee agreed to form the
Data Study Group that would seek to identify and evaluate potential
data sources that could replace the 2000 Decennial Census. The
Committee provided that the Data Study Group would report its findings
and recommendations by the seventh negotiated rulemaking scheduled for
August 2015. The Committee also agreed that absent a consensus decision
by the Committee regarding a new data source, HUD would make a final
decision on a new data source that would be introduced starting in
fiscal year 2018. The data source would be data collected in a uniform
manner that can be confirmed and verified for all AIAN household and
persons living in an identified area. Initially, the data used would be
the most recent data available from the U.S. Census Bureau.
As discussed in this preamble, the Data Study Group conducted an
extensive review of several potential data sources and reported the
results of its work and its recommendations at the seventh negotiated
rulemaking session. The Committee did not accept the recommendations of
the Data Study Group and did not come to a consensus on a new data
source. This inability to reach consensus was based in part on a
concern expressed by several Committee members that the 2010 Decennial
Census undercounted AIAN persons in some tribal areas and that the ACS
suffered from similar inaccuracies.
Throughout the negotiated rulemaking process, HUD's Committee
representatives made it known that while HUD was open to the results of
the Data Study Group and worked toward reaching consensus on the data
source, HUD considered the ACS as providing an up-to-date, reliable,
comprehensive and accurate data source available for the variables in
Sec. 1000.324. In this regard, HUD made clear that the ACS were data
``collected in a uniform manner that can be confirmed and verified for
all AIAN households and persons living in an identified area.'' HUD
also made it known that the 2010 Decennial Census also met these
standards for the count of AIAN persons variable in Sec. 1000.324(g).
Accordingly, and consistent with the Committee's consensus decision to
establish the Need study group, this rule proposes to use the ACS 5-
Year Estimates as the source of the data for the variables in
paragraphs (a) through (f) of Sec. 1000.324, and the most recent
Decennial Census as the source for the total AIAN person variable in
Sec. 1000.324(g). HUD believes that the use of these sources more
accurately reflect Indian Country given the substantial changes that
have taken place since 2000.
Notwithstanding, HUD recognized that the Data Study Group found
evidence to support the concerns of a number of tribes that the 2010
Decennial Census has a significant undercount in some tribal areas and
that the ACS suffers from a similar inaccuracy. HUD has further
researched these concerns and identified three adjustments that
mitigate these problems. These adjustments were the focus of eighth
meeting of the Committee, which took place on January 26-27, 2016.
Undercount on reservations. After each Decennial Census, the U.S.
Census Bureau conducts a follow-up survey to determine the extent that
the Decennial Census under- or over-counted particular subgroups within
the U.S. population. To address any undercount in the formula, HUD
proposed in Sec. 1000.330(b)(i) to increase the count of AIAN persons
(single race; and single and multi-race) for all geographies identified
in the most recent Decennial Census as having a statistically
significant undercount confirmed by the U.S. Census Bureau. The U.S.
Census Bureau determined in its post-Census 2010 enumeration that there
was a statistically significant 4.88 percent undercount of AIAN persons
living in Reservations and Trust Lands, including restricted fee land
acquired under the Treaty of Guadalupe Hidalgo, but not in other tribal
areas.\5\ As proposed, this adjusted total would serve as the basis to
determine the total AIAN person factor at Sec. 1000.324(g) until the
next Decennial Census is released. If a statistically significant
undercount occurs in the next Decennial Census, the AIAN person count
for Sec. 1000.324(g) would be adjusted based on the amount of that
undercount.
---------------------------------------------------------------------------

\5\ See, https://www.census.gov/coverage_measurement/pdfs/g04.pdf. The U.S. Census Bureau also found a not statistically
significant overcount of 3.86 percent for tribal areas off
reservation (this including Oklahoma Tribal Statistical Area, Tribal
Designated Statistical Area and the Alaska Native Village
Statistical Area). HUD is not proposing that these tribal areas be
adjusted down for the overcount because the overcount was not
statistically significant.
---------------------------------------------------------------------------

The eighth meeting of the Committee, considered this adjustment,
and after consideration, voted on the adjustment.

[[Page 34296]]

The Committee proposed to modify the language to clarify that the count
would be adjusted for a statistically significant undercount
specifically for the AIAN population count. After this language was
changed, the Committee reached consensus on this adjustment. In
addition, the Committee considered a proposal to consider Indian Lands
in Remote Alaska the same as Reservation and Trust Lands when it is
determined that there has been a statistically significant undercount
in Reservation and Trust Lands, unless the U.S. Census has included
Remote Alaska in its coverage. This provision was proposed in order to
address the fact that the U.S. Census Bureau's Census Coverage
Measurement (CCM) Study did not include Indian Lands in Remote Alaska.
The term ``Remote Alaska'' means Type of Enumeration Area as delineated
by the U.S. Census Bureau for the 2010 Decennial Census. With the
addition of this provision to Sec. 1000.330(b)(i), the Committee
reached consensus on this item.
Control total weights within the ACS. A critical component of any
sample survey is to accurately weight completed surveys to reflect the
full population the sample is drawn from. HUD recognizes that the
weighting methodology used by the U.S. Census Bureau for ACS differs
from what it used for the long-form data from the 2000 Census. For the
2000 Census long-form, the U.S. Census set the control totals at small
geographies--places, tribal areas, Census Tracts, etc. As a result, a
sample set of data for subgroup populations--such as a count of Native
Americans in a tribal area--were generally very close to the count of
those same variables from the short-form of the Decennial Census.
The U.S. Census Bureau adopted a different approach for the ACS,
setting population control total weights at the county and place levels
that have population estimates. That is, they are set at a higher level
geography, mostly county and incorporated places, and not tribal areas.
The ACS has adopted this approach because it establishes weights for
all variables according to annual population estimates that are only
available at these higher level geographies.
This change in methodology for setting control total weights can
create a problem for the IHBG formula data for tribes. Without a small
geography control total for the weights, the ACS can produce a
population count for a subgroup in a small geography that is much
different than the Decennial Census count for the same population.
To address this issue, HUD proposed in Sec. 1000.330(b)(ii) to
adjust the ACS data for the variables described in paragraphs (a)
through (f) of Sec. 1000.324 by the ratio of the adjusted total of
AIAN persons based on the aged 2010 Decennial Census to the most
recently available ACS count of AIAN persons as adjusted by Sec.
1000.330(b)(i). HUD believes that this adjustment would make the ACS
data methodology for small area geographic areas better align with the
methodology used in the 2000 Decennial Census and provide a more
accurate count of AIAN persons for smaller tribes. Some tribal members
of the Committee did not agree.
During the eighth meeting of the Committee, the Committee
considered this adjustment, and after consideration, voted on the
adjustment. The Committee did not reach consensus on the vote for this
adjustment. The majority of tribal Committee members did not support
this adjustment. While some members supported this adjustment, the
majority of tribal Committee members expressed concern with this
proposal. Some members opposed the use of ACS as the data source for
the formula and therefore voted against the adjustment. Other members
supported the use of ACS data but believed that reweighting the data as
proposed by HUD was not appropriate for other reasons. Specifically,
some tribal Committee members believed that the undercount of one
variable, AIAN persons, could not be properly assumed to translate to
other variables. Notwithstanding, this rule proposes to adjust the ACS
data for the variables described in paragraph (a) through (f) of Sec.
1000.324 by the ratio of the adjusted total of AIAN persons based on
the aged 2010 Decennial Census to the most recently available ACS count
of AIAN persons as adjusted by Sec. 1000.330(b)(i).
Aging of the Data. In addition to the adjustments to the 2010
Decennial Census and ACS data described in this preamble, HUD proposed
revising the method of aging the data. Specifically, based on the work
of the Data Study Group, HUD in Sec. 1000.330(b)(i) proposed,
beginning in fiscal year 2018, to age the data using the U.S. Census
Bureau county level Population Estimates for Native Americans. In
proposing this change, HUD notes that the Data Study Group determined
that the Indian Health Service (IHS) projections based on birth and
death rate, which is currently used to age the data, do not take into
account migration and may result in both under and over estimates of
population growth over time. While not perfect, the U.S. Census Bureau
county level Population Estimates take into account migration and
provide a more accurate count of AIAN persons. These Population
Estimates do not come from the ACS. As a result, Sec. 1000.330(b)(i)
would state that the data source used to determine the AIAN person
variable in Sec. 1000.324(g) would be updated annually using the U.S.
Census Bureau county level Population Estimates for Native Americans.
During the eighth meeting of the Committee, the Committee
considered this adjustment, and after consideration, voted on the
adjustment. The Committee reached consensus on this adjustment.
Transition Period in Fiscal Years 2016 and 2017. As agreed by the
Committee by consensus, this proposed rule would delay implementation
of these changes until fiscal year 2018. In this regard, Sec.
1000.330(a) of this rule proposes to maintain the status quo during
this period by providing that the data used to determine the Need
variables would be the 2000 U.S. Decennial Census and any HUD-accepted
Census challenges until fiscal year 2018. This section would also
provide that this data would continue to be aged using IHS birth and
death records. HUD believes that delaying the use of new data sources
will help ensure that tribes do not encounter instability or lack of
predictability for their grants when the rule takes effect. For this
reason, HUD agreed to this delay.
Challenge Data. This proposed rule continues to maintain the right
of Indian tribes to challenge the data described in this section
pursuant to Sec. 1000.336. Specifically, this proposed rule would
redesignate currently codified Sec. 1000.330(d) as Sec. 1000.330(c)
making minor, technical edits to ensure accuracy of the cross-
reference.

V. Tribal Comments

After HUD's issuance of a proposal on November 19, 2015, and prior
to the eighth meeting of Committee, HUD invited the tribal members of
the Committee to submit comments on its proposal and on the preamble
section describing its proposal. The comment period lasted from
November 23, 2015, to December 23, 2015. HUD received comments from six
Committee members during this time frame.
Several Committee members expressed support for the use of aged
2010 Decennial Census data for the AIAN population count. Those same
commenters supported the use of ACS data for the remaining six Need
variables.
Other commenters expressed dissatisfaction with the compensation of

[[Page 34297]]

any undercounts and the use of a weighting adjustment for any
undercounts. All of these tribal Committee members opined that HUD
improperly made these unanticipated adjustments without consulting the
Committee or allowing the Committee sufficient time to review. Some
commenters noted that such adjustments are unnecessary since the Study
Group found that improvements to the ACS data will be fully implemented
upon the release of the 2012-2016 ACS data set. One commenter stated
that if the Decennial Census and ACS were used as data sources, a
generalized adjustment based on a 4.88 percent undercount would be
insufficient in some areas and disproportionately beneficial in others.
Another commenter pointed out that the use of the ACS as proposed in
the rule will unfairly and significantly harm villages in rural Alaska.
According to the commenter, these populations are substantially
undercounted, but HUD is not applying a weighting adjustment to rural
Alaska because the exact amount of the undercount is unknown.
One commenter expressed support for developing and using a
federally- or tribally-administered national tribal survey to collect
information concerning enrollment in a recognized tribe, in lieu of the
Decennial Census or the ACS.

VI. Other Nonconsensus Items and Issues for Consideration

A. Current Assisted Stock Cost Adjustment Factor

In response to a discussion of the Allowable Expense Level
adjustment factor in Sec. 1000.320 during the 2005 IHBG Negotiated
Rulemaking Session, HUD commissioned a study to assess the cost of
operating 1937 Act housing programs across Indian Country and Alaska.
The Indian Housing Operating Cost Study \6\ examined the potential for
using, among other sources, data from the U.S. Department of
Agriculture's 515 program to determine how to weight the operating
costs for different tribes. The USDA 515 data is derived from Section
515 units, which are affordable rental housing units in rural areas for
very low-, low-, and moderate-income families; the elderly; and persons
with disabilities. Because the data set includes operating expense data
for projects in some rural counties that serve low- and very low-income
households, it could be used to estimate costs in some tribes' formula
area counties.
---------------------------------------------------------------------------

\6\ This study investigated the costs of operating 1937 Act
housing programs in Indian Country and Alaska and determined the
efficacy of the Allowable Expense Level factor in ascertaining these
costs. For more information, the study can be found at: http://ihbgrulemaking.firstpic.org/images/Library/ihoc_report_final%20423.pdf.
---------------------------------------------------------------------------

During the seventh Negotiated Rulemaking Session, the FCAS Working
Group considered whether USDA 515 data could be used as an additional
cost adjustment factor under Sec. 1000.320. The Committee requested
the USDA 515 data and requested that HUD calculate block grant
allocations to all tribes under two scenarios: (1) Using a local area
cost adjustment factor that is the greater of Fair Market Rents (FMR),
Allowable Expense Level (AEL), and USDA 515 factors for each tribe, and
(2) using a factor that is the greater of the FMR and USDA 515 factors.
Ultimately, the Committee considered a proposal to revise Sec.
1000.320 to use a local area cost adjustment factor that is the greater
of FMR, AEL, and USDA 515 factors for each tribe. After discussion of
the proposal, the Committee was unable to reach consensus on how to
modify the Current Assisted Stock local cost adjustment in Sec.
1000.320. Several Committee members raised concerns that the USDA 515
rural housing rental program did not provide cost data for some
locations and others felt that insufficient data was available to
determine how the addition of this factor would affect tribes
nationwide.

B. Revise the Definition of AIAN

Although the Data Study Group did not reach consensus on the issue,
it recommended that the Committee discuss whether or not to exclude
South, Central, and Canadian AIAN persons from the data provided by the
Decennial Census and the ACS for purposes of the IHBG formula. The
study group made this recommendation after some study group members
expressed concern that the IHBG is intended to serve only AIAN persons
with a tribal affiliation in the United States. Because individuals
having their origins in the indigenous peoples of Central America,
South America, and Canada may or may not fall within the category of
persons eligible to be served through the IHBG program, the study group
referred the matter to the full Committee for consideration. The
Committee discussed this issue as recommended, considered language
drafted by the Drafting Committee, however the full Committee did not
take the language up for a formal vote due to the withdrawal of the
language.

VII. Question for Commenters

HUD understands that other organizations, including State and local
governments or nonprofits, may use certain factors or data from the
IHBG formula to inform their own work with Indian tribes. HUD requests
public comment on what factors or data are used by these organizations
and how the changes proposed to the IHBG formula would impact the work
done by such organizations.

VIII. Tribal Recommendation

Non-HUD members of the Committee recommend HUD establish a joint
task force that includes tribal and HUD representatives to develop a
methodology to collect operating cost data from IHBG recipients in a
consistent and accurate manner that could be used to adjust for local
operating costs in the adjustment to the operating subsidy under the
current assisted stock portion of the formula (i.e. replace the current
factors under section 1000.320(a)). Non-HUD members recommend that
resources other than IHBG funds be made available to fund technical
experts and task force members and other costs that may be identified.
The Committee notes that for a variety of reasons, the Committee
did not accommodate the examination of the Needs variables.

IX. Findings and Certifications

Regulatory Review--Executive Orders 12866 and 13563

Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and, therefore, subject to review by the Office of Management and
Budget (OMB) in accordance with the requirements of the order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. This proposed rule was determined to be a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866. The docket file is available for public
inspection in the Regulations Division, Office of General Counsel, 451
7th Street, SW., Room 10276, Washington, DC 20410-0500. Due to security
measures at the HUD Headquarters building, an advance appointment to

[[Page 34298]]

review the public comments must be scheduled by calling the Regulations
Division at 202 402-3055 (this is not a toll-free number). Individuals
with speech or hearing impairments may access this number via TTY by
calling the Federal Relay Service, toll free, at 1-800-877-8339.

Paperwork Reduction Act

The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance
with the Paperwork Reduction Act, an agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless the collection displays a currently valid OMB control number.
The burden of the information collections in this proposed rule is
estimated as follows:

Reporting and Recordkeeping Burden: I
----------------------------------------------------------------------------------------------------------------
Estimated
Number of Number of average time Estimated
Section reference respondents responses per for requirement annual burden
respondent (in hours) (in hours)
----------------------------------------------------------------------------------------------------------------
Sec. 1000.316............................... 226 1 0.2 45.2
Sec. 1000.318............................... 212 1 0.5 106
Sec. 1000.336............................... 10 1 4 40
-----------------------------------------------------------------
Total Burden.............................. .............. .............. ............... 191.2
----------------------------------------------------------------------------------------------------------------

In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from
members of the public and affected agencies concerning this collection
of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this rule. Comments must refer
to the proposal by name and docket number (FR-5650) and must be sent
to:

HUD Desk Officer, Office of Management and Budget, New Executive Office
Building, Washington, DC 20503, Fax: (202) 395-6947, and

Reports Liaison Officer, Office of Public and Indian Housing,
Department of Housing and Urban Development, Room 451, 7th Street SW.,
Washington, DC 20410

Interested persons may submit comments regarding the information
collection requirements electronically through the Federal eRulemaking
Portal at http://www.regulations.gov. HUD strongly encourages
commenters to submit comments electronically. Electronic submission of
comments allows the commenter maximum time to prepare and submit a
comment, ensures timely receipt by HUD, and enables HUD to make them
immediately available to the public. Comments submitted electronically
through the http://www.regulations.gov Web site can be viewed by other
commenters and interested members of the public. Commenters should
follow the instructions provided on that site to submit comments
electronically.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis for any rule that is subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
The requirements of this rule apply to Indian tribal governments and
their tribal housing authorities. Tribal governments and their tribal
housing authorities are not covered by the definition of ``small
entities'' under the RFA. Accordingly, the undersigned certifies that
this rule will not have a significant impact on a substantial number of
small entities.
Notwithstanding HUD's view that this rule will not have a
significant effect on a substantial number of small entities, HUD
specifically invites comments regarding any less burdensome
alternatives to this rule that will meet HUD's objectives as described
in this preamble.

Executive Order 13132, Federalism

Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from promulgating a
regulation that has federalism implications and either imposes
substantial direct compliance costs on state and local governments and
is not required by statute, or preempts state law, unless the relevant
requirements of section 6 of the Executive Order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments, and on the private sector. This rule will not
impose any federal mandate on any state, local, or tribal government,
or on the private sector, within the meaning of UMRA.

Environmental Review

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 Finding of
No Significant Impact is available for public inspection between the
hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office
of General Counsel,

[[Page 34299]]

Department of Housing and Urban Development, 451 7th Street SW., Room
10276, Washington, DC 20410. Due to security measures at the HUD
Headquarters building, please schedule an appointment to review the
FONSI by calling the Regulations Division at 202-708-3055 (this is not
a toll-free number). Individuals with speech or hearing impairments may
access this number via TTY by calling the Federal Relay Service, toll
free, at 1-800-877-8339.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance Number (CFDA) for Indian
Housing Block Grants is 14.867, and the CFDA for Title VI Federal
Guarantees for Financing Tribal Housing Activities is 14.869.

List of Subjects in 24 CFR Part 1000

Aged, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.

Accordingly, for the reasons described in the preamble, HUD
proposes to amend 24 CFR part 1000 as follows:

PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES

0
1. The authority citation for 24 CFR part 1000 continues to read as
follows:

Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).

0
2. In Sec. 1000.302, revise paragraph (2)(i) of the definition of
``Formula area'' to read as follows:

Sec. 1000.302 What are the definitions applicable for the IHBG
formula?

* * * * *
Formula area. * * *
(2) * * *
(i) For a geographic area not identified in paragraph (1) of this
definition, and for expansion or re-definition of a geographic area
from the prior year, including those identified in paragraph (1) of
this definition, the Indian tribe must submit, on a form agreed to by
HUD, information about the geographic area it wishes to include in its
Formula Area, including proof that the Indian tribe, where applicable,
has agreed to provide housing services pursuant to a Memorandum of
Agreement (MOA) with the tribal and public governing entity or entities
of the area, or has attempted to establish such an MOA, and is
providing substantial housing services and will continue to expend or
obligate funds for substantial housing services, as reflected in its
Indian Housing Plan and Annual Performance Report for this purpose.
* * * * *
0
3. Revise Sec. 1000.306 to read as follows:

Sec. 1000.306 How can the IHBG formula be modified?

(a) The IHBG formula can be modified upon development of a set of
measurable and verifiable data directly related to Indian and Alaska
Native housing need. Any data set developed shall be compiled with the
consultation and involvement of Indian tribes and examined and/or
implemented not later than 5 years from the date of issuance of these
regulations and periodically thereafter.
(b) The IHBG formula shall be reviewed not later than May 21, 2012,
to determine if a subsidy is needed to operate and maintain NAHASDA
units or if any other changes are needed in respect to funding under
the Formula Current Assisted Stock component of the formula.
0
4. Revise Sec. 1000.310 to read as follows:

Sec. 1000.310 What are the components of the IHBG formula?

The IHBG formula consists of four components:
(a) Formula Current Assisted Stock (FCAS) (Sec. 1000.316);
(b) Need (Sec. 1000.324);
(c) 1996 Minimum (Sec. 1000.340); and
(d) Undisbursed IHBG funds factor (Sec. 1000.342).
0
5. In Sec. 1000.316 add paragraph (c) to read as follows:

Sec. 1000.316 How is the Formula Current Assisted Stock (FCAS)
Component developed?

* * * * *
(c) Conversion. Conversion of FCAS units from homeownership (Mutual
Help or Turnkey III) to low-rent or from low-rent to a home ownership
program.
(1) If units were converted before October 1, 1997, as evidenced by
an amended ACC, then those units will be counted for formula funding
and eligibility purposes as the type of unit to which they were
converted.
(2) If units were converted on or after October 1, 1997, the
following applies:
(i) Funding type. Units that converted after October 1, 1997 will
be funded as the type of unit specified on the original ACC in effect
on September 30, 1997.
(ii) Continued FCAS eligibility. Whether or not it is the first
conversion, a unit converted after October 1, 1997, will be considered
as the type converted to when determining continuing FCAS eligibility.
A unit that is converted to low-rent will be treated as a low-rent unit
for purposes of determining continuing FCAS eligibility. A unit that is
converted to homeownership will be treated as a homeownership unit for
purposes of determining continuing FCAS eligibility.
(3) The Indian tribe, TDHE, or IHA shall report conversions on the
Formula Response Form.
0
6. Revise Sec. 1000.318 by adding paragraph (a)(3) to read as follows:

Sec. 1000.318 When do units under Formula Current Assisted Stock
cease to be counted or expire from the inventory use for the formula?

(a) * * *
(3) A Mutual Help or Turnkey III unit not conveyed after the unit
becomes eligible for conveyance by the terms of the MHOA may continue
to be considered Formula Current Assisted Stock only if a legal
impediment prevented conveyance; the legal impediment continues to
exist; the tribe, TDHE, or IHA has taken all other steps necessary for
conveyance and all that remains for conveyance is a resolution of the
legal impediment; and the tribe, TDHE, or IHA made the following
reasonable efforts to overcome the impediments:
(i) No later than four months after the unit becomes eligible for
conveyance, the tribe, TDHE, or IHA creates a written plan of action,
which includes a description of specific legal impediments as well as
specific, ongoing, and appropriate actions for each applicable unit
that have been taken and will be taken to resolve the legal impediments
within a 24-month period; and
(ii) The tribe, TDHE, or IHA has carried out or is carrying out the
written plan of action; and
(iii) The tribe, TDHE, or IHA has documented undertaking the plan
of action.
(iv) No Mutual Help or Turnkey III unit will be considered FCAS 24
months after the date the unit became eligible for conveyance, unless
the tribe, TDHE, or IHA provides evidence from a third party, such as a
court or state or federal government agency, documenting that a legal
impediment continues to prevent conveyance. FCAS units that have not
been conveyed due to legal impediments on [effective date of this
regulation] shall be treated as having become eligible for conveyance
on [effective date of this regulation].
* * * * *
0
7. In Sec. 1000.326 revise paragraph (a)(3), redesignate paragraph (c)
as

[[Page 34300]]

paragraph (d) and add a new paragraph (c), to read as follows:

Sec. 1000.326 What if a formula area is served by more than one
Indian tribe?

(a) * * *
(3) In cases where a State recognized tribe's formula area overlaps
with the formula area of a Federally recognized Indian tribe, the
Federally recognized Indian tribe receives the allocation for the
formula area up to its population cap, and the State recognized tribe
receives the balance of the overlapping area (if any) up to its
population cap.
* * * * *
(c) Upon receiving a request for expansion or redefinition of a
tribe's formula area, if approving the request would create an overlap,
HUD shall follow the notice and comment procedures set forth in
paragraph (2)(ii) of the definition of ``Formula area'' in Sec.
1000.302.
* * * * *
0
8. Add Sec. 1000.329 to read as follows:

Sec. 1000.329 What is the minimum total grant allocated to a tribe if
there is carryover funds available?

(a) If in any given year there are carryover funds, then HUD will
hold the lesser amount of $3 million or available carryover funds for
additional allocations to tribes with grant allocations of less than
0.011547 percent of that year's appropriations. All tribes eligible
under this section shall receive a grant allocation equal to 0.011547
percent of that year's appropriations.
(b)(1) If the set-aside carryover funds are insufficient to fund
all eligible tribes at 0.011547 percent of that year's appropriations,
the minimum total grant shall be reduced to an amount which can be
fully funded with the available set-aside carryover funds.
(2) If less than $3 million is necessary to fully fund tribes under
paragraph (a) of this section, any remaining carryover amounts of the
set aside shall be carried forward to the next year's formula.
(c) Certify in its Indian Housing Plan the presence of any eligible
households at or below 80 percent of median income;
(d) For purposes of this section, carryover funds means grant funds
voluntarily returned to the formula or not accepted by tribes in a
fiscal year.
0
9. Revise Sec. 1000.330 to read as follows:

Sec. 1000.330 What are the data sources for the need variables?

(a) The sources of data for the Need variables shall be data that
are available and collected in a uniform manner that can be confirmed
and verified for all AIAN households and persons living in an
identified area. Until fiscal year 2018, the data used are 2000 U.S.
Decennial Census data and any HUD-accepted Census challenges. The 2000
U.S. Decennial Census data shall be adjusted annually using IHS
projections based upon birth and death rate data provided by the
National Center for Health Statistics.
(b)(i) Beginning fiscal year 2018, the data source used to
determine the AIAN persons variable described in Sec. 1000.324(g)
shall be the most recent U.S. Decennial Census data adjusted for any
statistically significant undercount for AIAN population confirmed by
the U.S. Census Bureau and updated annually using the U.S. Census
Bureau county level Population Estimates for Native Americans. For
purposes of this paragraph, Indian Lands in Remote Alaska shall be
treated as Reservation and Trust Lands, unless the U.S. Census Bureau
includes Remote Alaska in their Census Coverage Measurement or
comparable study. The data under this paragraph shall be updated
annually using the U.S. Census Bureau county level Population Estimates
for Native Americans.
(ii) Beginning fiscal year 2018, the data source used to determine
the variables described in paragraphs (a) through (f) of Sec. 1000.324
shall initially be the American Community Survey (ACS) 5-year Estimates
adjusted by the ratio of the count of AIAN persons as provided by
paragraph (b)(i) of this section to the ACS count of AIAN persons.
(c) Indian tribes may challenge the data described in this section
pursuant to Sec. 1000.336.
0
10. Add Sec. 1000.331 to read as follows:

Sec. 1000.331 How will the impacts from adoption of a new data source
be minimized as the new data source is implemented?

(a) To minimize the impact of funding changes based on the
introduction of a new data source under Sec. 1000.330, in fiscal year
2018 and each year thereafter, if, solely as a direct result of the
introduction of a new data source, an Indian tribe's allocation under
the Need component of the formula is less than 90 percent of the amount
it received under the Need component in the immediate previous fiscal
year, the Indian tribe's Need allocation shall be adjusted up to an
amount equal to 90 percent of the previous year's Need allocation.
(b) Nothing in this section shall impact other adjustments under
this part, including minimum funding, census challenges, formula area
changes, or an increase in the total amount of funds available under
the Need component.
(c) In the event of a decrease in the total amount of funds
available under the Need component, an Indian tribe's adjusted
allocation under paragraph (a) of this section shall be reduced by an
amount proportionate to the reduced amount available for distribution
under the Need component of the formula.
(d) Adjustments under paragraph (b) or (c) of this section shall be
made to a tribe's Need allocation after adjusting that allocation under
paragraph (a) of this section.
0
11. Revise Sec. 1000.336 as follows:
0
a. In paragraph (a)(6) remove ``and'';
0
b. In paragraph (a)(7) remove the period and add in its place ``and;''
0
c. Add paragraph (a)(8);
0
d. Revise paragraphs (d), (e), and (f).

Sec. 1000.336 How may an Indian tribe, TDHE, or HUD challenge data or
appeal HUD formula determinations?

(a) * * *
(8) The undisbursed funds factor.
* * * * *
(d) An Indian tribe or TDHE that seeks to appeal data or a HUD
formula determination, and has data in its possession that are
acceptable to HUD, shall submit the challenge or appeal in writing with
data and proper documentation to HUD. An Indian tribe or TDHE may
appeal the undisbursed funds factor no later than 30 days after the
receipt of the formula determination. Data used to challenge data
contained in the U.S. Census must meet the requirements described in
Sec. 1000.330(a). Further, in order for a census challenge to be
considered for the upcoming fiscal year allocation, documentation must
be submitted by March 30th.
(e) HUD shall respond to all challenges or appeals no later than 45
days after receipt and either approve or deny the appeal in writing,
setting forth the reasons for its decision.
(1) If HUD challenges the validity of the submitted data HUD and
the Indian tribe or TDHE shall attempt in good faith to resolve any
discrepancies so that such data may be included in the formula
allocation.
(2) If HUD denies a challenge or appeal, the Indian tribe or TDHE
may request reconsideration of HUD's denial within 30 calendar days of
receipt of HUD's denial. The request shall be in writing and set forth
justification for reconsideration.
(3) HUD shall in writing affirm or deny the Indian tribe's or
TDHE's request for reconsideration, setting forth HUD's reasons for the
decision, within 20 calendar days of receiving the

[[Page 34301]]

request. HUD's denial of a request for reconsideration shall constitute
final agency action.
(4) If HUD approves the Indian tribe or TDHE's appeal, HUD will
adjust to the Indian tribe's or TDHE's subsequent fiscal year
allocation to include only the disputed fiscal year(s).
(f) In the event HUD questions whether the data contained in the
formula accurately represents the Indian tribe's need, HUD shall
request the Indian tribe to submit supporting documentation to justify
the data and, if applicable, to provide a commitment to serve the
population indicated in the geographic area.
0
12. Add Sec. 1000.342 to subpart D to read as follows:

Sec. 1000.342 Are undisbursed IHBG funds a factor in the grant
formula?

Yes, beginning fiscal year 2018. After calculating the initial
allocation calculation for the current fiscal year by calculating FCAS,
Need, the 1996 Minimum, and repayments or additions for past over- or
under-funding for each Indian tribe, the undisbursed funds factor shall
be applied as follows:
(a) The undisbursed funds factor applies if an Indian tribe's
initial allocation calculation is $5 million or more and the Indian
tribe has undisbursed IHBG funds in an amount that is greater than the
sum of the prior 3 years' initial allocation calculations.
(b) If subject to paragraph (a) of this section, the Indian tribe's
grant allocation shall be the greater of the initial allocation
calculation minus the amount of undisbursed IHBG funds that exceed the
sum of the prior 3 years' initial allocation calculations, or its 1996
Minimum.
(c) For purposes of this section, ``undisbursed IHBG funds'' means
the amount of IHBG funds allocated to an Indian tribe in HUD's line of
credit control system (or successor system) on October 1 of the fiscal
year for which the allocation is made. For Indian tribes under an
umbrella TDHE (a recipient that has been designated to receive grant
amounts by more than one Indian tribe), if the Indian tribe's initial
allocation calculation is $5 million or more, its undisbursed IHBG
funds is the amount calculated by multiplying the umbrella TDHE's total
balance in HUD's line of credit control system (or successor system) on
October 1 of the fiscal year for which the allocation is made by a
percentage based on the Indian tribe's proportional share of the
initial allocation calculation of all tribes under the umbrella.
(d) Amounts subtracted from an initial allocation calculation under
this section shall be redistributed under the Need component among all
Indian tribes not subject to paragraph (a) of this section (while also
retaining the 1996 Minimum).

Dated: May 4, 2016.
Lourdes Castro Ramirez,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2016-12596 Filed 5-27-16; 8:45 am]
BILLING CODE 4210-67-P

34290 Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules

number of the engine mount inner retainer using the procedures found in 14 CFR 39.19. Issued in Renton, Washington, on May 20,
can be conclusively determined from that In accordance with 14 CFR 39.19, send your 2016.
review. request to your principal inspector or local Victor Wicklund,
(1) An aft engine mount having a serial Flight Standards District Office, as Acting Manager, Transport Airplane
number listed in table 1 of Airbus Alert appropriate. If sending information directly Directorate, Aircraft Certification Service.
Operators Transmission (AOT) A71N011–15, to the International Branch, send it to ATTN:
Rev 01, dated February 1, 2016. [FR Doc. 2016–12593 Filed 5–27–16; 8:45 am]
Sanjay Ralhan, Aerospace Engineer,
(2) An engine mount inner retainer International Branch, ANM–116, Transport BILLING CODE 4910–13–P
installed on an airplane between the first Airplane Directorate, FAA, 1601 Lind
flight of the airplane or March 1, 2015 Avenue SW., Renton, WA 98057–3356;
(whichever occurs later), and the effective telephone: 425–227–1405; fax: 425–227– DEPARTMENT OF HOUSING AND
date of this AD, and that can be identified by 1149. Information may be emailed to: 9- URBAN DEVELOPMENT
a purchase order (PO) listed in table 2 of ANM-116-AMOC-REQUESTS@faa.gov.
Airbus AOT A71N011–15, Rev 01, dated Before using any approved AMOC, notify 24 CFR Part 1000
February 1, 2016. your appropriate principal inspector, or
(3) An engine mount inner retainer lacking a principal inspector, the manager of [Docket No. FR–5650–P–12]
installed on an airplane between the first the local flight standards district office/
flight of the airplane or March 1, 2015 RIN 2577–AC90
certificate holding district office. The AMOC
(whichever occurs later), and the effective
approval letter must specifically reference Native American Housing Assistance
date of this AD, and that cannot be identified
this AD. and Self-Determination Act; Revisions
by a PO.
(2) Contacting the Manufacturer: For any
to the Indian Housing Block Grant
(h) Service Information for Actions Required requirement in this AD to obtain corrective
by Paragraph (g) of This AD actions from a manufacturer, the action must
Program Formula
Accomplish the replacement required by be accomplished using a method approved AGENCY: Office of the Assistant
paragraph (g) of this AD in accordance with by the Manager, International Branch, ANM– Secretary for Public and Indian
the service information specified in 116, Transport Airplane Directorate, FAA; or Housing, HUD.
paragraph (h)(1), (h)(2), or (h)(3) of this AD. the European Aviation Safety Agency
(EASA); or Airbus’s EASA Design ACTION: Proposed rule.
(1) The Accomplishment Instructions of
Airbus Service Bulletin A320–71–1070, Organization Approval (DOA). If approved by
SUMMARY: This proposed rule would
dated November 23, 2015. the DOA, the approval must include the
DOA-authorized signature. revise the Indian Housing Block Grant
(2) Paragraph 4.2.2, ‘‘Requirements,’’ of
Airbus AOT A71N011–15, Revision 01, dated (3) Required for Compliance (RC): If any (IHBG) Program allocation formula
February 1, 2016. service information contains procedures or authorized by section 302 of the Native
(3) The Accomplishment Instructions of tests that are identified as RC, those American Housing Assistance and Self-
Goodrich Service Bulletin RA32071–165, procedures and tests must be done to comply Determination Act of 1996, as amended
dated October 9, 2015. with this AD; any procedures or tests that are (NAHASDA). Through the IHBG
not identified as RC are recommended. Those Program, HUD provides federal housing
(i) Credit for Previous Actions procedures and tests that are not identified assistance for Indian tribes in a manner
This paragraph provides credit for the as RC may be deviated from using accepted that recognizes the right of Indian self-
applicable actions required by paragraph (g) methods in accordance with the operator’s
of this AD, if those actions were performed determination and tribal self-
maintenance or inspection program without
before the effective date of this AD using obtaining approval of an AMOC, provided
government. HUD negotiated the
Airbus AOT A71N011–15, Revision 01, dated the procedures and tests identified as RC can proposed rule with active tribal
February 1, 2016, which is not incorporated be done and the airplane can be put back in participation and using the procedures
by reference in this AD. an airworthy condition. Any substitutions or of the Negotiated Rulemaking Act of
(j) Parts Installation Prohibition changes to procedures or tests identified as 1990. The proposed regulatory changes
RC require approval of an AMOC. reflect the consensus decisions reached
As of the effective date of this AD, no
person may install any part that meets any (m) Related Information by HUD and the tribal representatives
of the criteria specified in paragraph (j)(1), on ways to improve and clarify the
(1) Refer to Mandatory Continuing
(j)(2), (j)(3) of this AD on any airplane. current regulations governing the IHBG
Airworthiness Information (MCAI) EASA AD
(1) An aft engine mount having a serial 2016–0010R1, dated February 16, 2016, for Program formula.
number listed in table 1 of Airbus AOT related information. This MCAI may be DATES: Comment Due Date: August 1,
A71N011–15, Rev 01, dated February 1, found in the AD docket on the Internet at 2016.
2016. http://www.regulations.gov by searching for
(2) An engine mount inner retainer ADDRESSES: Interested persons are
and locating Docket No. FAA–2016–6896.
delivered through a PO listed in table 2 of invited to submit comments regarding
(2) For Airbus service information
Airbus AOT A71N011–15, Rev 01, dated
identified in this AD, contact Airbus,
this proposed rule to the Regulations
February 1, 2016. Division, Office of General Counsel,
Airworthiness Office—EIAS, 1 Rond Point
(3) An engine mount inner retainer Department of Housing and Urban
Maurice Bellonte, 31707 Blagnac Cedex,
delivered through an unidentified PO. Development, 451 7th Street SW., Room
France; telephone: +33 5 61 93 36 96; fax:
(k) Special Flight Permits +33 5 61 93 44 51; email: account.airworth- 10276, Washington, DC 20410–0500.
Special flight permits, as described in eas@airbus.com; Internet: http:// Communications must refer to the above
Section 21.197 and Section 21.199 of the www.airbus.com. For Goodrich service docket number and title. There are two
Federal Aviation Regulations (14 CFR 21.197 information identified in this AD, contact methods for submitting public
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

and 21.199), are not allowed. Goodrich Corporation, Aerostructures, 850 comments. All submissions must refer
Lagoon Drive, Chula Vista, CA 91910–2098;
(l) Other FAA AD Provisions to the above docket number and title.
telephone: 619–691–2719; email: jan.lewis@
1. Submission of Comments by Mail.
The following provisions also apply to this goodrich.com; Internet: http://
www.goodrich.com/TechPubs. You may view
Comments may be submitted by mail to
AD:
(1) Alternative Methods of Compliance this service information at the FAA, the Regulations Division, Office of
(AMOCs): The Manager, International Transport Airplane Directorate, 1601 Lind General Counsel, Department of
Branch, ANM–116, Transport Airplane Avenue SW., Renton, WA. For information Housing and Urban Development, 451
Directorate, FAA, has the authority to on the availability of this material at the 7th Street SW., Room 10276,
approve AMOCs for this AD, if requested FAA, call 425–227–1221. Washington, DC 20410–0500.

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Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules 34291

2. Electronic Submission of several separate assistance programs the date of the first meeting of the
Comments. Interested persons may and replaced them with a single block Committee. The Committee membership
submit comments electronically through grant program, known as the Indian consists of 24 designated representatives
the Federal eRulemaking Portal at Housing Block Grant (IHBG) Program. of tribal governments (or authorized
www.regulations.gov. HUD strongly NAHASDA and its implementing designees of those tribal governments).
encourages commenters to submit regulations, codified at 24 CFR part The Committee membership reflected a
comments electronically. Electronic 1000, recognize tribal self-determination balanced representation of Indian tribes,
submission of comments allows the and self-governance while establishing both geographically and based on size.
commenter maximum time to prepare reasonable standards of accountability. In addition to the tribal members, there
and submit a comment, ensures timely Reflective of this, section 106 of were two HUD representatives on the
receipt by HUD, and enables HUD to NAHASDA provides that HUD shall Committee. Committee meetings took
make them immediately available to the develop implementing regulations with place on August 27–28, 2013,
public. Comments submitted active tribal participation and using the September 17–19, 2013, April 23–24,
electronically through the procedures of the Negotiated 2014, June 11–13, 2014, July 29–31,
www.regulations.gov Web site can be Rulemaking Act of 1990 (5 U.S.C. 561– 2014, August, 26–28, 2014, August 11–
viewed by other commenters and 570). 13, 2015, and January 26–27, 2016. The
interested members of the public. NAHASDA has been amended and Committee agreed to operate based on
Commenters should follow the reauthorized several times since being consensus rulemaking and its approved
instructions provided on that site to signed into law in 1996. Following the charter and protocols. All of the
submit comments electronically. enactment of the Native American Committee meetings were announced in
Housing Assistance and Self- the Federal Register and were open to
Note: To receive consideration as public
comments, comments must be submitted Determination Reauthorization Act of the public.1
through one of the two methods specified 2008 (Pub. L. 110–411, approved The Committee divided itself into
above. Again, all submissions must refer to October 14, 2008) (NAHASDA multiple workgroups to analyze
the docket number and title of the rule. Reauthorization Act) HUD established a specified provisions of the IHBG
No Facsimile Comments. Facsimile negotiated rulemaking committee on formula and to draft any new or revised
(fax) comments are not acceptable. January 5, 2010 (75 FR 423), that regulatory language it believed was
Public Inspection of Public focused on implementing the necessary. A workgroup was responsible
Comments. HUD will make all properly NAHASDA Reauthorization Act and for analyzing the regulations for the
submitted comments and prior amendments to NAHASDA. The Need component. Another workgroup
communications available for public negotiated rulemaking committee reviewed the provisions governing the
inspection and copying between 8 a.m. addressed all IHBG program regulations, Formula Current Assisted Stock (FCAS)
and 5 p.m. weekdays at the above except those provisions which govern component. The workgroups were not
address. Due to security measures at the the NAHASDA allocation formula authorized to reach any final or binding
HUD Headquarters building, you must codified in subpart D of 24 CFR part decisions but rather, reported to the full
schedule an appointment in advance to 1000. As a result of that negotiated Committee. The draft regulatory
review the public comments by calling rulemaking, HUD published a final rule language developed by the workgroups
the Regulations Division at 202–708– on December 3, 2012 (77 FR 71513), that was then brought before the full
3055 (this is not a toll-free number). revised HUD regulations governing the Committee for review, amendment, and
Individuals with speech or hearing IHBG Program and the Title VI Loan approval.
Guarantee program (under Title VI of At the August 2014 meeting, an
impairments may access this number
NAHASDA, 25 U.S.C. 4191, et seq.) A additional study group, the Data Study
via TTY by calling the toll-free Federal
separate negotiated rulemaking was Group, was established to assess
Relay Service at 800–877–8339. Copies
subsequently begun to review the alternative data sources to the 2000
of all comments submitted are available
allocation formula regulations. United States Decennial Census, which
for inspection and downloading at
currently serves as the data source for
www.regulations.gov. II. The IHBG Formula Negotiated the factors that are used to calculate the
FOR FURTHER INFORMATION CONTACT: Rulemaking Committee Need component of the allocation
Randall R. Akers, Acting Deputy On July 3, 2012 (77 FR 39452) and formula, including American Indian and
Assistant Secretary for Native American September 18, 2012 (77 FR 57544), HUD Alaskan Native (AIAN) households with
Programs, Office of Public and Indian published notices in the Federal housing cost burdens, inadequate
Housing, Department of Housing and Register announcing HUD’s intent to housing, low- and moderate-income
Urban Development, 451 Seventh Street, establish a negotiated rulemaking AIAN households, and AIAN
SW., Room 4126, Washington, DC committee for the purposes of reviewing population. The Data Study Group was
20410–5000, telephone, (202) 402–7598 the regulations at 24 CFR part 1000, comprised of one Committee member
(this is not a toll-free number). Hearing subpart D, and negotiating from each of the six HUD-designated
or speech-impaired individuals may recommendations for a possible ONAP regions, plus one HUD
access this number via TTY by calling proposed rule modifying the IHBG representative. The Data Study Group
the toll-free Federal Relay Service at 1– formula. On June 12, 2013 (78 FR members identified three technical
800–877–8339. 35178), HUD published for public experts and HUD provided a technical
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

SUPPLEMENTARY INFORMATION: comment the names and affiliations of expert to assist with the work. Meetings
the committee’s proposed members. On of the Data Study Group were open to
I. Background July 30, 2013 (78 FR 45903), after all Committee members and to the
The Native American Housing considering public comment on the public. The Data Study Group met both
Assistance and Self-Determination Act proposed membership, HUD published
of 1996 (25 U.S.C. 4101 et seq.) a Federal Register notice announcing 1 See, 78 FR 45903 (July 30, 2013); 78 FR 54416

(NAHASDA) changed the way that the final list of members of the IHBG (September 4, 2013); 79 FR 14204 (March 13, 2014);
79 FR 28700 (May 23, 2014); 80 FR 30004 (May 26,
housing assistance is provided to Native Formula Negotiated Rulemaking 2015); 80 FR 33157 (June 11, 2015); 81 FR 881
Americans. NAHASDA eliminated Committee (Committee) and announcing (January 8, 2016).

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34292 Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules

telephonically and in-person and • Data Reported by IHBG Grant section that addressed how Section 8
operated on a consensus basis. Recipients on Formula Response units would be treated under the
In a Federal Register notice published Form formula. Currently, § 1000.306(c)
on September 25, 2014 at 79 FR 57489, • Total Development Costs (TDC) provides that, during the five-year
the Committee solicited suggestions The Data Study Group carefully review of the FCAS component of the
from the public for potential data considered the evaluation results of formula, the count of units associated
sources that would achieve an optimal technical experts, had multiple with expired contracts for tenant-based
balance of the following factors: discussions among its membership, Section 8 rental assistance would be
recognition of tribal sovereignty; data including requests for clarification from reduced by the same percentage as the
relevant to eligible AIAN housing needs; the technical experts, and on July 31, current assisted rental stock has
and collected using a methodology that 2015, issued its final report containing diminished since September 30, 1999.
is objective, equitable, transparent, a recommendation for a data source or After HUD issued this regulation,
consistent, capable of being applied to sources to be used in calculating the section 502(a) of NAHASDA was
all existing formula areas, statistically AIAN persons variable of the Need amended by the Omnibus Indian
reliable, and replicable both over time component of the IHBG funding Advancement Act (Pub. L. 106–568,
and diverse geographies. The data formula, which it presented to the full approved December 27, 2000) (25 U.S.C.
would need to be collected and Committee. Specifically, the Data Study 4181(a)) to provide that housing subject
submitted by proficient persons or Group recommended that the AIAN to a contract for tenant-based Section 8
organizations with appropriate capacity population be the greater of the most rental assistance prior to September 30,
and training and to be collected on a recently available American Community 1997, under the authority of the United
recurring basis at reasonable intervals or Survey (ACS), Decennial Census, or States Housing Act of 1937 (42 U.S.C.
be capable of reliable statistical aging. Challenge data, and that data no longer 1437 et seq.) is to be considered a
Finally, the data source could not be aged. This proposal did not reach dwelling unit for purposes of section
impose an undue administrative or consensus at the full Committee level. 302(b)(1) of NAHASDA. As a result, the
financial burden upon tribes, needed to The Data Study Group’s full report can proposed rule removes paragraph (c)
be cost-effective, and be capable of be found as a supporting document to from § 1000.306.
being fully evaluated by the Data Study this proposed rule at C. Components of IHBG Formula
Group within a one-year timeframe. www.Regulations.gov. (§ 1000.310)
After receiving responses to the III. This Proposed Rule The proposed rule would revise
September 25, 2014 Federal Register The Committee undertook a § 1000.310 to reflect that the IHBG
notice, the Data Study Group identified comprehensive review of the IHBG formula would consist of four
49 different data sources that were Formula. The Committee also reviewed components: FCAS (§ 1000.316), Need
reviewed by the technical experts any statutory changes that still needed (§ 1000.324), 1996 Minimum
against a pre-determined set of to be addressed in the regulations. The (§ 1000.340), and Undisbursed IHBG
screening criteria. Of the 49 nominated Committee identified certain areas of funds factor (§ 1000.342). FCAS, Need,
data sources, the Data Study Group the IHBG formula that required and 1996 Minimum are existing
agreed unanimously that 30 did not clarification, were outdated, or could be components of the formula. The
meet these criteria. The technical improved. With the exception of proposed addition of the Undisbursed
experts then prepared detailed changes to § 1000.330(b)(ii), this IHBG funds factor is discussed below.
characterizations of the remaining 19 proposed rule reflects the consensus
data sources. Based on the D. Conversions of Units From Low-Rent
decisions reached by the Committee FCAS to Mutual Help or From Mutual
characterization process and the during the negotiated rulemaking
discussion that followed, the Data Study Help to Low-Rent FCAS (§ 1000.316)
process on the best way to address these
Group rejected 10 more data sources issues. The following section of this This proposed rule would clarify the
that did not meet the pre-determined preamble provides a summary of the type and eligibility of low-income
criteria. The Data Study Group moved consensus recommended changes to the dwelling units developed under the
nine remaining data sources forward for IHBG formula by this proposed rule. United States Housing Act of 1937 that
comprehensive evaluation. These are converted from Low-Rent to Mutual
included the following four sets of core A. Revision of Definition of Formula Help or, from Mutual Help to Low-Rent.
data and five sets of support data: Area (§ 1000.302) The Committee proposed a new
To conform § 1000.302 to the decision paragraph (c) to codify HUD’s existing
Core Data practice and establish the following.
of the United States Court of Appeals for
• Most Recent Decennial Census data the Tenth Circuit in United Keetoowah Units that were converted before
collected by the U.S. Census Bureau Band of Cherokee Indians of Oklahoma NAHASDA’s effective date of October 1,
• American Community Survey v. United States Department of Housing 1997, would count in the formula as the
collected by the U.S. Census Bureau and Urban Development,2 HUD is type of unit to which they were
revising the definition of formula area at converted, and their FCAS eligibility
• National Tribal Survey to be
24 CFR 1000.302 by striking the would be evaluated on the basis of the
Administered by a Federal Agency
type of unit to which they were
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

• National Tribal Survey to be reference to ‘‘court jurisdiction’’ in
paragraph (2)(i) of the definition. converted. The amount of per unit
Administered by tribes FCAS funding for units that were
Support Data B. Continued Funding of Section 8 Units converted after October 1, 1997, would
(§ 1000.306) be determined according to the unit’s
• Tribal Enrollment Data The proposed rule would make a type specified in the original Annual
• Indian Health Service Population technical amendment to § 1000.306 to Contributions Contract (ACC), i.e. the
Projections eliminate paragraph (c), an outdated ACC in effect on September 30, 1997,
• U.S. Census Bureau Population while their FCAS eligibility would be
Estimates 2 567 F.3d 1235 (10th Cir. 2009). evaluated on the basis of the type to

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Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules 34293

which they were converted. such as a Federal, State, or tribal court, assist low-income Indian families in the
Furthermore, the rule would require or State or Federal agency, documenting future.
recipients to report conversions on their that the impediment continues to Upon further review, HUD has
Formula Response Form. The prevent conveyance. Proposed determined that this provision may
Committee emphasized that the § 1000.318(a)(3) would address Mutual exceed the scope of section 302(b)(1)(C)
decision to convert a unit was a local Help and Turnkey III units that, as of of NAHASDA. The provision would
decision for the tribe or TDHE (tribally the effective date of this regulation, have have potentially allowed FCAS units
designated housing entity) to make at its not been conveyed because timely that are rebuilt in a time period that
discretion. conveyance was demonstrably beyond exceeds 1-year from the time of
the tribe’s control. These units would be demolition to remain FCAS units under
E. Mutual Help Unit Conveyance the formula. While this proposed rule
(§ 1000.318(a)) considered to have become eligible to
convey on the effective date of this does not propose specific regulatory
This proposed rule would clarify in regulation, triggering the time periods language addressing demolished FCAS
§ 1000.318 the FCAS eligibility of for creating a written plan of action to units, HUD is seeking public comment
Mutual Help and Turnkey III units resolve the impediment and conveying on how to address this issue by
developed under the United States the units or providing the third party regulation, while also remaining within
Housing Act of 1937 that are not evidence of continued impediment the scope of section 302(b)(1)(C) of
conveyed within 25 years from the Date within the 24-month period. Section NAHASDA.
of Full Availability (DOFA plus 25 1000.318(a)(3)(iv) would apply to units In this regard, HUD notes that during
years). The proposed rule would that have not been conveyed due to this negotiated rulemaking, the FCAS
provide specific milestones for legal impediments, and would not apply workgroup considered defining the term
demonstrating FCAS eligibility. to units that are eligible for conveyance ‘‘demolition’’ in order to help clarify the
Specifically, the proposed rule would before the effective date of this point in time in which the 1-year period
provide that a unit may continue to be regulation but have not been conveyed begins to run. For instance, the
considered FCAS when conveyance of for other reasons. workgroup discussed whether to define
the unit is prevented by a legal demolition in cases involving natural
impediment, if the tribe, TDHE, or F. Demolition and Rebuilding of FCAS disasters or fires as occurring at the time
Indian Housing Authority (IHA) has Units of the event. The workgroup also
taken all other steps necessary to considered whether demolition should
effectuate the conveyance and has made At the August 2014 meeting, the be defined as occurring only when a
and documented reasonable efforts to Committee approved revising recipient voluntarily demolishes units
remove the impediment. Mutual Help § 1000.318 to add a new paragraph (d) in order to clear a site for a new
and Turnkey III units that are eligible to establish the eligibility criteria for replacement unit. HUD is specifically
for conveyance under the terms of their FCAS units that are demolished and soliciting public comment, therefore, on
Mutual Help and Occupancy Agreement rebuilt. Under section 302(b)(1)(C) of these and alternative proposals that
(MHOA) but not conveyed would NAHASDA, if a unit is demolished and address section 302(b)(1)(C). Once HUD
continue to be considered FCAS if the the recipient rebuilds the unit within 1- receives all public comments on this
delay in conveyance is caused by year of demolition of the unit, the unit proposed rule, it is HUD’s intent to
reasons beyond the control of the tribe, may continue to be considered an FCAS afford the Committee, based on the
TDHE, or IHA. Section 302(b)(1)(D) of unit under the formula. To implement public comment received, another
NAHASDA (25 U.S.C. 4152(b)(1)(D)) this requirement, the Committee opportunity at the final negotiated
provides that the term ‘‘reasons beyond approved a regulatory provision that rulemaking session to consider specific
the control of a recipient’’ means, after would permit the unit to continue to be regulatory language addressing this
the recipient makes ‘‘reasonable efforts’’ considered FCAS if the recipient issue to be included in a final rule.
to resolve all issues necessary for certifies in writing, within one-year
conveyance, the conveyance is still from the date that the unit becomes G. Overlapping Formula Areas
delayed because there remain delays in damaged or deteriorated, that it has (§ 1000.326)
obtaining or, the absence of title status taken tangible action to demolish and This proposed rule would revise
reports, incorrect or inadequate legal rebuild the unit. In addition, the § 1000.326(a) to provide in cases where
descriptions or other legal provision would require that a State recognized tribe’s formula area
documentation necessary for reconstruction of the unit be completed overlaps with the formula area of a
conveyance, clouds on title due to within four years of the point at which Federally recognized Indian tribe, that
probate or intestacy or other court demolition or replacement became the Federally recognized Indian tribe
proceedings, or any other legal necessary. At the end of the four year would receive the allocation for the
impediment. Thus, under this proposed period, the unit would no longer be formula area up to its population cap.
rule, to demonstrate reasonable efforts, considered FCAS unless the recipient The revision also provides that the State
the tribe, TDHE or IHA would be notified HUD that the reconstruction of recognized tribe would receive the
required, no later than four months after the unit has been completed. If a balance of the allocation, if any exists,
the unit becomes eligible for recipient fails to rebuild a unit within up to its own population cap.
conveyance, to create a written plan of the four-year time frame, the unit would Section 1000.326 would also be
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action that describes the impediment nonetheless have been considered revised to require that HUD follow the
and the actions it will take to resolve the eligible as FCAS during those four notice and comment procedures in the
impediment within 24 months after the years. This provision was intended to definition of ‘‘Formula Area’’
date the unit became eligible for incentivize the reconstruction of (§ 1000.302 (2)(ii)) upon receiving a
conveyance. If the legal impediment properties in a condition of such request for expansion or redefinition of
remains after that 24-month period, the significant disrepair that they must be a tribe’s formula area, if approving the
unit would no longer be considered demolished and rebuilt in order to request would create an overlap of
FCAS unless the tribe, TDHE, or IHA preserve critical housing stock and formula areas with one or more other
provides evidence from a third party, ensure that housing remains available to tribes. This proposed change is intended

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Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules 34295

Committee following HUD’s issuance of the formula. Because of the complexity Need study group, this rule proposes to
a proposal on November 19, 2015, to of the issue, the Committee agreed by use the ACS 5-Year Estimates as the
resolve the data source issue. consensus to a procedure to identify and source of the data for the variables in
Specifically, HUD proposed the use of evaluate alternate data sources. paragraphs (a) through (f) of § 1000.324,
the ACS 5-year Estimates as the source Specifically, at the sixth negotiated and the most recent Decennial Census
of the data for the variables in rulemaking meeting in August 2014, the as the source for the total AIAN person
paragraphs (a) through (f) of § 1000.324 Committee agreed to provide itself with variable in § 1000.324(g). HUD believes
and the most recent Decennial Census an additional year to study the issue by that the use of these sources more
as the source for the total AIAN persons delaying implementation of any new accurately reflect Indian Country given
variable in § 1000.324(g). In each case, data source until fiscal year 2018. At the the substantial changes that have taken
HUD proposed adjusting the data same time, the Committee agreed to place since 2000.
sources in order to address undercounts form the Data Study Group that would Notwithstanding, HUD recognized
reported by the U.S. Census Bureau and seek to identify and evaluate potential that the Data Study Group found
the unique concerns resulting from data sources that could replace the 2000 evidence to support the concerns of a
conducting the ACS sample in Indian Decennial Census. The Committee number of tribes that the 2010
Country. provided that the Data Study Group Decennial Census has a significant
In an effort to address the concerns of would report its findings and undercount in some tribal areas and that
the Committee regarding this proposal, recommendations by the seventh the ACS suffers from a similar
HUD scheduled the eighth meeting to negotiated rulemaking scheduled for inaccuracy. HUD has further researched
discuss the use of these data sources, August 2015. The Committee also these concerns and identified three
vote on adjustments to data sources and agreed that absent a consensus decision adjustments that mitigate these
approve the final preamble language. by the Committee regarding a new data problems. These adjustments were the
HUD’s proposal is discussed in more source, HUD would make a final focus of eighth meeting of the
detail later in this preamble. decision on a new data source that Committee, which took place on January
Section 1000.330 describes the data would be introduced starting in fiscal 26–27, 2016.
source used for the Need variables in year 2018. The data source would be Undercount on reservations. After
§ 1000.324. Currently, § 1000.330 data collected in a uniform manner that each Decennial Census, the U.S. Census
provides that the data sources for the can be confirmed and verified for all Bureau conducts a follow-up survey to
Need variables ‘‘shall be data available AIAN household and persons living in determine the extent that the Decennial
that is collected in a uniform manner an identified area. Initially, the data Census under- or over-counted
that can be confirmed and verified for used would be the most recent data particular subgroups within the U.S.
all AIAN households and persons living available from the U.S. Census Bureau. population. To address any undercount
in an identified area.’’ Current As discussed in this preamble, the in the formula, HUD proposed in
§ 1000.330 also states that ‘‘[i]nitially, Data Study Group conducted an § 1000.330(b)(i) to increase the count of
the data used are the U.S. Decennial extensive review of several potential AIAN persons (single race; and single
Census data.’’ HUD originally codified data sources and reported the results of and multi-race) for all geographies
§ 1000.330 in 1998 3 and revised the its work and its recommendations at the identified in the most recent Decennial
section in 2007.4 Currently, HUD uses seventh negotiated rulemaking session. Census as having a statistically
the 2000 Decennial Census as the data The Committee did not accept the significant undercount confirmed by the
source for the Needs variables. recommendations of the Data Study U.S. Census Bureau. The U.S. Census
Beginning in 2010, the U.S. Census Group and did not come to a consensus Bureau determined in its post-Census
Bureau discontinued use of the ‘‘long on a new data source. This inability to 2010 enumeration that there was a
form’’ that, along with the short-form reach consensus was based in part on a statistically significant 4.88 percent
census questionnaire, went to a sample concern expressed by several Committee undercount of AIAN persons living in
of households. The ‘‘long form’’ members that the 2010 Decennial Reservations and Trust Lands, including
contained additional questions and Census undercounted AIAN persons in restricted fee land acquired under the
provided more detailed socioeconomic some tribal areas and that the ACS Treaty of Guadalupe Hidalgo, but not in
information about the population. As suffered from similar inaccuracies. other tribal areas.5 As proposed, this
part of this change, the more detailed Throughout the negotiated adjusted total would serve as the basis
socioeconomic information once rulemaking process, HUD’s Committee to determine the total AIAN person
collected by the long-form questionnaire representatives made it known that factor at § 1000.324(g) until the next
is now collected by the ACS. The ACS while HUD was open to the results of Decennial Census is released. If a
potentially provides more current data the Data Study Group and worked statistically significant undercount
regarding communities and is sent to a toward reaching consensus on the data occurs in the next Decennial Census, the
sample of the population on a rotating source, HUD considered the ACS as AIAN person count for § 1000.324(g)
basis throughout the decade. providing an up-to-date, reliable, would be adjusted based on the amount
One impact of the discontinuation of comprehensive and accurate data source of that undercount.
the use of the ‘‘long form’’ is that data available for the variables in § 1000.324. The eighth meeting of the Committee,
for six of the seven variables in In this regard, HUD made clear that the considered this adjustment, and after
§ 1000.324 are no longer collected by ACS were data ‘‘collected in a uniform consideration, voted on the adjustment.
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

the Decennial Census. During the course manner that can be confirmed and
of this negotiated rulemaking the verified for all AIAN households and 5 See, https://www.census.gov/coverage_

persons living in an identified area.’’ measurement/pdfs/g04.pdf. The U.S. Census
Committee extensively discussed Bureau also found a not statistically significant
revising § 1000.330 to use more current HUD also made it known that the 2010 overcount of 3.86 percent for tribal areas off
data sources, including the ACS, that Decennial Census also met these reservation (this including Oklahoma Tribal
might be used to determine Need under standards for the count of AIAN persons Statistical Area, Tribal Designated Statistical Area
and the Alaska Native Village Statistical Area).
variable in § 1000.324(g). Accordingly, HUD is not proposing that these tribal areas be
3 63 FR 12334, March 12, 1998. and consistent with the Committee’s adjusted down for the overcount because the
4 72 FR 20018, April 20, 2007. consensus decision to establish the overcount was not statistically significant.

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34298 Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules

review the public comments must be Paperwork Reduction Act agency may not conduct or sponsor, and
scheduled by calling the Regulations The information collection a person is not required to respond to,
Division at 202 402–3055 (this is not a requirements contained in this rule have a collection of information unless the
toll-free number). Individuals with been submitted to the Office of collection displays a currently valid
speech or hearing impairments may Management and Budget (OMB) under OMB control number.
access this number via TTY by calling the Paperwork Reduction Act of 1995 The burden of the information
the Federal Relay Service, toll free, at (44 U.S.C. 3501–3520). In accordance collections in this proposed rule is
1–800–877–8339. with the Paperwork Reduction Act, an estimated as follows:
REPORTING AND RECORDKEEPING BURDEN: I
Estimated
Number of average time Estimated
Number of
Section reference responses per for annual burden
respondents respondent requirement (in hours)
(in hours)

§ 1000.316 ................................................................................................... 226 1 0.2 45.2
§ 1000.318 ................................................................................................... 212 1 0.5 106
§ 1000.336 ................................................................................................... 10 1 4 40

Total Burden ......................................................................................... ........................ ........................ .......................... 191.2

In accordance with 5 CFR 1320.8(d)(1), strongly encourages commenters to Executive Order 13132, Federalism
HUD is soliciting comments from submit comments electronically. Executive Order 13132 (entitled
members of the public and affected Electronic submission of comments ‘‘Federalism’’) prohibits, to the extent
agencies concerning this collection of allows the commenter maximum time to practicable and permitted by law, an
information to: prepare and submit a comment, ensures agency from promulgating a regulation
(1) Evaluate whether the proposed timely receipt by HUD, and enables that has federalism implications and
collection of information is necessary HUD to make them immediately either imposes substantial direct
for the proper performance of the available to the public. Comments compliance costs on state and local
functions of the agency, including submitted electronically through the governments and is not required by
whether the information will have http://www.regulations.gov Web site can statute, or preempts state law, unless the
practical utility; be viewed by other commenters and relevant requirements of section 6 of the
(2) Evaluate the accuracy of the interested members of the public. Executive Order are met. This rule does
agency’s estimate of the burden of the Commenters should follow the not have federalism implications and
proposed collection of information; instructions provided on that site to does not impose substantial direct
(3) Enhance the quality, utility, and submit comments electronically. compliance costs on state and local
clarity of the information to be
Regulatory Flexibility Act governments or preempt state law
collected; and
(4) Minimize the burden of the within the meaning of the Executive
collection of information on those who The Regulatory Flexibility Act (RFA) Order.
are to respond, including through the (5 U.S.C. 601 et seq.) generally requires Unfunded Mandates Reform Act
use of appropriate automated collection an agency to conduct a regulatory
flexibility analysis for any rule that is Title II of the Unfunded Mandates
techniques or other forms of information
subject to notice and comment Reform Act of 1995 (2 U.S.C. 1531–
technology, e.g., permitting electronic
rulemaking requirements, unless the 1538) (UMRA) establishes requirements
submission of responses.
Interested persons are invited to agency certifies that the rule will not for federal agencies to assess the effects
submit comments regarding the have a significant economic impact on of their regulatory actions on state,
information collection requirements in a substantial number of small entities. local, and tribal governments, and on
this rule. Comments must refer to the The requirements of this rule apply to the private sector. This rule will not
proposal by name and docket number Indian tribal governments and their impose any federal mandate on any
(FR–5650) and must be sent to: tribal housing authorities. Tribal state, local, or tribal government, or on
governments and their tribal housing the private sector, within the meaning of
HUD Desk Officer, Office of UMRA.
Management and Budget, New authorities are not covered by the
Executive Office Building, definition of ‘‘small entities’’ under the Environmental Review
Washington, DC 20503, Fax: (202) RFA. Accordingly, the undersigned
A Finding of No Significant Impact
395–6947, and certifies that this rule will not have a
(FONSI) with respect to the
Reports Liaison Officer, Office of Public significant impact on a substantial
environment has been made in
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

and Indian Housing, Department of number of small entities. accordance with HUD regulations at 24
Housing and Urban Development, Notwithstanding HUD’s view that this CFR part 50, which implement section
Room 451, 7th Street SW., rule will not have a significant effect on 102(2)(C) of the National Environmental
Washington, DC 20410 a substantial number of small entities, Policy Act of 1969 (42 U.S.C.
Interested persons may submit HUD specifically invites comments 4332(2)(C)). The Finding of No
comments regarding the information regarding any less burdensome Significant Impact is available for public
collection requirements electronically alternatives to this rule that will meet inspection between the hours of 8 a.m.
through the Federal eRulemaking Portal HUD’s objectives as described in this and 5 p.m. weekdays in the Regulations
at http://www.regulations.gov. HUD preamble. Division, Office of General Counsel,

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Federal Register / Vol. 81, No. 104 / Tuesday, May 31, 2016 / Proposed Rules 34299

Department of Housing and Urban services, as reflected in its Indian eligibility. A unit that is converted to
Development, 451 7th Street SW., Room Housing Plan and Annual Performance low-rent will be treated as a low-rent
10276, Washington, DC 20410. Due to Report for this purpose. unit for purposes of determining
security measures at the HUD * * * * * continuing FCAS eligibility. A unit that
Headquarters building, please schedule ■ 3. Revise § 1000.306 to read as is converted to homeownership will be
an appointment to review the FONSI by follows: treated as a homeownership unit for
calling the Regulations Division at 202– purposes of determining continuing
708–3055 (this is not a toll-free § 1000.306 How can the IHBG formula be FCAS eligibility.
number). Individuals with speech or modified? (3) The Indian tribe, TDHE, or IHA
hearing impairments may access this (a) The IHBG formula can be modified shall report conversions on the Formula
number via TTY by calling the Federal upon development of a set of Response Form.
Relay Service, toll free, at 1–800–877– measurable and verifiable data directly ■ 6. Revise § 1000.318 by adding
8339. related to Indian and Alaska Native paragraph (a)(3) to read as follows:
housing need. Any data set developed
Catalog of Federal Domestic Assistance § 1000.318 When do units under Formula
shall be compiled with the consultation
The Catalog of Federal Domestic and involvement of Indian tribes and Current Assisted Stock cease to be counted
Assistance Number (CFDA) for Indian examined and/or implemented not later or expire from the inventory use for the
Housing Block Grants is 14.867, and the formula?
than 5 years from the date of issuance
CFDA for Title VI Federal Guarantees of these regulations and periodically (a) * * *
for Financing Tribal Housing Activities thereafter. (3) A Mutual Help or Turnkey III unit
is 14.869. (b) The IHBG formula shall be not conveyed after the unit becomes
List of Subjects in 24 CFR Part 1000 reviewed not later than May 21, 2012, eligible for conveyance by the terms of
to determine if a subsidy is needed to the MHOA may continue to be
Aged, Community development block operate and maintain NAHASDA units considered Formula Current Assisted
grants, Grant programs—housing and or if any other changes are needed in Stock only if a legal impediment
community development, Grant respect to funding under the Formula prevented conveyance; the legal
programs—Indians, Indians, Individuals Current Assisted Stock component of impediment continues to exist; the tribe,
with disabilities, Public housing, the formula. TDHE, or IHA has taken all other steps
Reporting and recordkeeping ■ 4. Revise § 1000.310 to read as necessary for conveyance and all that
requirements. follows: remains for conveyance is a resolution
Accordingly, for the reasons described of the legal impediment; and the tribe,
in the preamble, HUD proposes to § 1000.310 What are the components of TDHE, or IHA made the following
amend 24 CFR part 1000 as follows: the IHBG formula? reasonable efforts to overcome the
The IHBG formula consists of four impediments:
PART 1000—NATIVE AMERICAN components: (i) No later than four months after the
HOUSING ACTIVITIES (a) Formula Current Assisted Stock unit becomes eligible for conveyance,
(FCAS) (§ 1000.316); the tribe, TDHE, or IHA creates a written
■ 1. The authority citation for 24 CFR (b) Need (§ 1000.324); plan of action, which includes a
part 1000 continues to read as follows: (c) 1996 Minimum (§ 1000.340); and description of specific legal
Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. (d) Undisbursed IHBG funds factor impediments as well as specific,
3535(d). (§ 1000.342). ongoing, and appropriate actions for
■ 2. In § 1000.302, revise paragraph ■ 5. In § 1000.316 add paragraph (c) to each applicable unit that have been
(2)(i) of the definition of ‘‘Formula area’’ read as follows: taken and will be taken to resolve the
to read as follows: § 1000.316 How is the Formula Current
legal impediments within a 24-month
Assisted Stock (FCAS) Component period; and
§ 1000.302 What are the definitions
applicable for the IHBG formula? developed? (ii) The tribe, TDHE, or IHA has
* * * * * carried out or is carrying out the written
* * * * * plan of action; and
Formula area. * * * (c) Conversion. Conversion of FCAS
(2) * * * units from homeownership (Mutual (iii) The tribe, TDHE, or IHA has
(i) For a geographic area not identified Help or Turnkey III) to low-rent or from documented undertaking the plan of
in paragraph (1) of this definition, and low-rent to a home ownership program. action.
for expansion or re-definition of a (1) If units were converted before (iv) No Mutual Help or Turnkey III
geographic area from the prior year, October 1, 1997, as evidenced by an unit will be considered FCAS 24
including those identified in paragraph amended ACC, then those units will be months after the date the unit became
(1) of this definition, the Indian tribe counted for formula funding and eligible for conveyance, unless the tribe,
must submit, on a form agreed to by eligibility purposes as the type of unit TDHE, or IHA provides evidence from a
HUD, information about the geographic to which they were converted. third party, such as a court or state or
area it wishes to include in its Formula (2) If units were converted on or after federal government agency,
Area, including proof that the Indian October 1, 1997, the following applies: documenting that a legal impediment
asabaliauskas on DSK3SPTVN1PROD with PROPOSALS

tribe, where applicable, has agreed to (i) Funding type. Units that converted continues to prevent conveyance. FCAS
provide housing services pursuant to a after October 1, 1997 will be funded as units that have not been conveyed due
Memorandum of Agreement (MOA) the type of unit specified on the original to legal impediments on [effective date
with the tribal and public governing ACC in effect on September 30, 1997. of this regulation] shall be treated as
entity or entities of the area, or has (ii) Continued FCAS eligibility. having become eligible for conveyance
attempted to establish such an MOA, Whether or not it is the first conversion, on [effective date of this regulation].
and is providing substantial housing a unit converted after October 1, 1997, * * * * *
services and will continue to expend or will be considered as the type converted ■ 7. In § 1000.326 revise paragraph
obligate funds for substantial housing to when determining continuing FCAS (a)(3), redesignate paragraph (c) as

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Document Created: 2016-05-28 03:57:35
Document Modified: 2016-05-28 03:57:35

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Contact		Randall R. Akers, Acting Deputy Assistant Secretary for Native American Programs, Office of Public and Indian Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 4126, Washington, DC 20410-5000, telephone, (202) 402-7598 (this is not a toll-free number). Hearing or speech- impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.
FR Citation		81 FR 34290
RIN Number		2577-AC90
CFR Associated		Aged; Community Development Block Grants; Grant Programs-Housing and Community Development; Grant Programs-Indians; Indians; Individuals with Disabilities; Public Housing and Reporting and Recordkeeping Requirements