[Federal Register Volume 66, Number 136 (Monday, July 16, 2001)]
[Proposed Rules]
[Pages 37098-37100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17644]



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Part II





Department of Housing and Urban Development





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24 CFR Part 1000



Indian Housing Block Grant Allocation Formula; Notice of Intent To 
Establish a Negotiated Rulemaking Committee and Request for 
Nominations; Proposed Rule

  Federal Register / Vol. 66, No. 136 / Monday, July 16, 2001 / 
Proposed Rules  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 1000

[Docket No. FR-4676-N-01]


Indian Housing Block Grant Allocation Formula; Notice of Intent 
To Establish a NegotiatedRulemaking Committee and Request for 
Nominations

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

ACTION: Notice of intent to establish a Negotiated Rulemaking Committee 
and request for comments.

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SUMMARY: HUD announces its intent to establish a negotiated rulemaking 
committee for the purpose of negotiating a proposed rule that would 
revise the allocation formula used under the Indian Housing Block Grant 
(IHBG) Program. The establishment of the committee will offer Indian 
tribal governments the opportunity to have input into any changes 
determined to be necessary to improve the distribution of funds under 
the IHBG Program. Section 564 of the Negotiated Rulemaking Act of 1990 
requires that an agency, prior to the establishment of a negotiated 
rulemaking committee, publish a document in the Federal Register 
announcing its intent to establish the committee, provide certain 
information regarding the formation of the committee, and solicit 
nominations for membership on the committee. The purpose of this 
document is to implement the requirements of section 564.

DATES: Comment Due Date: August 15, 2001.

ADDRESSES: Interested persons are invited to submit comments regarding 
the Committee and its proposed members to the Office of the Rules 
Docket Clerk, Office of General Counsel, Room 10276, Department of 
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 
20410-0500. Communications should refer to the above docket number and 
title. Facsimile (FAX) comments are not acceptable. A copy of each 
communication submitted will be available for public inspection and 
copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.

FOR FURTHER INFORMATION CONTACT: Ted Key, Acting Deputy Assistant 
Secretary for Native American Programs, Office Public and Indian 
Housing, Department of Housing and Urban Development, Room 4126, 451 
Seventh Street, SW, Washington, DC 20410-0500; telephone (202) 401-7914 
(this number is not toll-free). Hearing or speech-impaired individuals 
may access this number via TTY by calling the toll-free Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 12, 1998 (63 FR 12349), HUD published its final rule 
implementing the Native American Housing Assistance and Self-
Determination Act of 1996 (25 U.S.C. 4101 et seq.) (referred to as 
``NAHASDA''). NAHASDA reorganized the system of Federal housing 
assistance to Native Americans by eliminating several separate HUD 
programs of assistance and replacing them with a single Indian Housing 
Block Grant (IHBG) Program. In addition to simplifying the process of 
providing housing assistance, the purpose of NAHASDA is to provide 
Federal assistance for Indian tribes in a manner that recognizes the 
right of Indian self-determination and tribal self-governance. As 
required by NAHASDA, HUD developed the March 12, 1998 final rule with 
active tribal participation and using the procedures of the Negotiated 
Rulemaking Act of 1990 (5 U.S.C. 561-570). The March 12, 1998 final 
rule created a new 24 CFR part 1000 containing the regulations for the 
IHBG Program.
    Under the IHBG Program, HUD makes assistance available to tribes 
for Indian housing activities. The amount of assistance made available 
to each Indian tribe is determined using a formula that was developed 
as part of the NAHASDA negotiated rulemaking process. A regulatory 
description of the formula is located in subpart D of 24 CFR part 1000 
(Secs. 1000.301-1000.340). Generally, the amount of funding for a tribe 
is the sum of the formula's Need component and the Formula Current 
Assisted Stock (FCAS) component, subject to a minimum funding amount 
authorized by Sec. 1000.328. Based on the amount of funding 
appropriated annually for the IHBG Program, HUD calculates the annual 
grant for each tribe and conveys this information to Indian tribes. An 
Indian Housing Plan (IHP) for the tribe is then submitted to HUD. If 
the IHP is found to be in compliance with statutory and regulatory 
requirements, the grant is made. In Federal fiscal year 2001, HUD 
allocated approximately $643.4 million to Indian tribes.
    Section 1000.306 of the IHBG Program regulations provide that the 
allocation formula shall be reviewed within five years after issuance. 
This 5-year period does not close until March 2003. However, the 
recently enacted Omnibus Indian Advancement Act (Pub.L. 105-568, 
approved December 27, 2000) (referred to hereafter as the ``Omnibus 
Act'') makes several statutory changes to the IHBG allocation formula 
that HUD has decided to implement through rulemaking. Accordingly, HUD 
believes this would be an appropriate time to revisit the IHBG formula 
and to determine whether any changes, in addition to those mandated by 
the Omnibus Act, should be made to 24 CFR part 1000, subpart D.
    The Omnibus Act made two statutory changes concerning allocations 
under the IHBG formula. First, section 1003(g) of the Omnibus Act 
amends section 302(d)(1) of NAHASDA to address the allocation of funds 
for operation and modernization of housing units developed under the 
United States Housing Act of 1937 (42 U.S.C. 1437 et seq.) (referred to 
as the ``1937 Act'') to tribes with an Indian housing authority that 
owns or operates fewer than 250 units. Further, section 1003(k)(3) of 
the Omnibus Act amends section 502(a) of NAHASDA to provide that any 
housing that was subject to a terminated contract for tenant-based 
assistance under the 1937 Act shall be treated as a dwelling unit for 
purposes of section 302(b)(1) of NAHASDA (which establishes the factors 
for determination of need under the IHBG formula).

II. Negotiated Rulemaking

    HUD intends to establish a negotiated rulemaking committee for the 
purpose of reviewing HUD's regulations for the IHBG formula (24 CFR 
part 1000, subpart D), and negotiating recommendations for a possible 
proposed rule modifying the formula. The committee membership will 
consist of elected officers of tribal governments (or authorized 
designees of those tribal governments) with a definable stake in the 
outcome of a proposed rule. The committee would be established, and 
conduct its work, in accordance with the procedures of the Negotiated 
Rulemaking Act of 1990.
    The basic concept of negotiated rulemaking is to have the agency 
that is considering drafting a rule bring together representatives of 
affected interests for face-to-face negotiations. The give-and-take of 
the negotiation process is expected to foster constructive, creative 
and acceptable solutions to difficult problems. The establishment of 
the negotiated rulemaking committee will offer Indian tribal 
governments the opportunity to have input into any changes determined 
to be necessary to improve the

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distribution of funds under the IHBG formula.
    The use of negotiated rulemaking procedures in this matter is 
consistent with the statutory goal of NAHASDA to respect the rights of 
Indian self-determination and tribal self-governance. Negotiated 
rulemaking also conforms to the consultation requirements of Executive 
Order 13175, entitled ``Consultation and Coordination with Indian 
Tribal Governments,'' issued on November 6, 2000 (the Order was 
published in the Federal Register on November 9, 2000 at 65 FR 67249). 
Executive Order 13175 requires that Federal agencies establish regular 
and meaningful collaboration with Indian tribal officials in the 
development of Federal policies that have tribal implications.
    Section 564 of the Negotiated Rulemaking Act of 1990 requires that 
an agency, prior to the establishment of a negotiated rulemaking 
committee, publish a notice in the Federal Register announcing its 
intent to establish the committee, provide certain information 
regarding the formation of the committee, and solicit nominations for 
selection to the committee. The purpose of this notice is to implement 
the requirements of section 564.

III. Committee Membership

    HUD's goal is to develop a committee whose membership reflects a 
balanced representation of Indian tribes. NAHASDA acknowledges the 
government-to-government relationship that exists between the Federal 
Government and federally-recognized Indian tribes. In furtherance of 
this fundamental principle, membership on the committee shall be 
limited to elected officers of tribal governments (or authorized 
designees of those tribal governments). HUD has determined that a total 
of 18 tribal representatives will fairly represent the wide range of 
diverse interests needed. One HUD representative will represent the 
interests of the Federal Government. Travel and per diem costs will be 
paid by HUD on an as-needed basis.
    Section IV. of this notice establishes a procedure for nominating 
individuals with the requisite experience and expertise, representing a 
wide range of interests (including geographically diverse small, medium 
and large tribes) that are willing and able to work within a consensus 
framework, on determining the need to revise the IHBG allocation 
formula. HUD invites interested persons and organizations to submit 
nominations for members of this committee. HUD will review the 
nominations submitted for committee membership to ensure that those 
selected will reflect the diversity of tribes in terms of size, 
location, and special circumstances. After review of all the 
nominations, HUD will publish a notice in the Federal Register 
announcing its proposed list of committee members, and soliciting 
public comment on the proposed membership.
    HUD does not believe that each potentially affected tribe must have 
its own representative. However, HUD must be satisfied that the group 
as a whole reflects a proper balance and mix of interests. Negotiation 
sessions will be open to members of the public, so individuals and 
organizations that are not members of the committee may attend all 
sessions and communicate informally with members of the committee.

IV. Nominations for Committee Membership

    Interested persons and organizations may nominate persons for 
committee membership by submitting a written nomination to HUD at the 
address listed in the ADDRESSES section of this notice no later than 
August 15, 2001. Nominations for membership on the committee must 
include:
    1. The name and address of the nominee and a description of the 
interests such person shall represent;
    2. Evidence that the nominee is authorized to represent a tribal 
government or group of tribal governments related to the interests the 
person proposes to represent;
    3. A written commitment that the nominee shall actively participate 
in good faith in the development of the rule under consideration; and
    4. A written statement indicating how the nominee meets the 
following five selection criteria:
     The nominee is an elected tribal officer, or is otherwise 
authorized by the tribal government to act on the tribe's behalf during 
the negotiated rulemaking sessions;
     The nominee has demonstrated housing experience as a 
member of the board of commissioners of a housing authority, housing 
entity, or other tribal organization;
     Selection of the nominee will help to ensure the committee 
contains an appropriate balance of representatives from small, medium 
and large Indian tribal governments;
     Selection of the nominee will ensure the geographic 
diversity of the committee membership; and
     The nominee has demonstrated ability to analyze and 
extrapolate complex data.

V. Final Committee Membership

    After reviewing any comments on this notice and all nominations for 
membership, HUD will issue a follow-up Federal Register notice. That 
notice will announce HUD's proposed list of negotiated rulemaking 
committee members, and provide the public with an opportunity to 
comment on the proposed membership. The notice will also provide 
interested individuals and organizations with an additional opportunity 
to submit nominations for committee membership. HUD will announce the 
final composition of the negotiated rulemaking committee in a Federal 
Register notice.

VI. Tentative Schedule

    At this time, HUD's tentative plan is to hold the first committee 
meeting in [insert approximate dates and locale]. The purpose of the 
meeting will be to orient members to the negotiated rulemaking process, 
to establish a basic set of understandings and ground rules (protocols) 
regarding the process that will be followed in seeking a consensus, and 
to begin to address the issues. Decisions with respect to future 
meetings will be made at the first meeting and from time to time 
thereafter.
    Advance notice of committee meetings will be published in the 
Federal Register. Meetings of the negotiated rulemaking committee will 
be open to the public without advance registration. Public attendance 
may be limited to the space available. Members of the public will be 
provided the opportunity to make statements during the meeting, to the 
extent time permits, and file written statements with the committee for 
its consideration. In the event that the date and time of these 
meetings are changed, HUD will advise the public through Federal 
Register notice.

VII. Applicability of the Federal Advisory Committee Act (FACA)

    The provisions of the Federal Advisory Committee Act (5 U.S.C. 
App.) (FACA) do not apply to this negotiated rulemaking committee. In 
accordance with section 204(b) of the Unfunded Mandates Reform Act of 
1995 (Pub.L. 104-4, approved March 22, 1995), FACA is not applicable to 
consultations between the Federal government and elected officers of 
Indian tribal governments (or their designated employees with authority 
to act on their behalf).
    The Office of Management and Budget (OMB) has issued guidelines 
implementing section 204(b). The OMB

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guidelines interpret the exemption broadly to include State, local, or 
tribal representative with the authority to act on behalf of the State, 
local, or tribal government, regardless of their actual employment 
status. As the OMB guidelines provide:

In accordance with the legislative intent, the exemption should be 
read broadly to facilitate intergovernmental communications on 
responsibilities or administration. This exemption applies to 
meetings between Federal officials and employees and State, local or 
tribal governments acting through their elected officers, officials, 
employees, and Washington representatives, at which `views, 
information, or advice' are exchanged concerning the implementation 
of intergovernmental responsibilities or administration, including 
those that arise explicitly or implicitly under statute, regulation, 
or Executive Order. The scope of meetings covered by this exemption 
should be construed broadly to include meetings called for any 
purpose relating to intergovernmental responsibilities or 
administration. Such meetings include, but are not limited to, 
meetings called for the purpose of seeking consensus, exchanging 
views, information, advice, and/or recommendations; or facilitating 
any other interaction relating to intergovernmental responsibilities 
or administration. (OMB Memorandum 95-20 (September 21, 1995), pp. 
6-7, published at 60 FR 50651, 50653 (September 29, 1995)).


    Dated: July 9, 2001.
Alphonso Jackson,
Deputy Secretary.
[FR Doc. 01-17644 Filed 7-13-01; 8:45 am]
BILLING CODE 4210-33-P